THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED
UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH
OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK.
HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT
OF THE RISKS INVOLVED.
Warrant to Purchase
"X" shares
WARRANT TO PURCHASE COMMON STOCK
OF
PROVIDENCE CAPITAL IX, INC.
THIS CERTIFIES that ▇▇▇▇▇▇ PRIVATE EQUITY, LLC, or any subsequent
holder hereof pursuant to Section 8 hereof ("Holder") has the right to
purchase from Providence Capital IX, Inc., a Colorado corporation (the
"Company"), up to "X" (as defined below) fully paid and nonassessable
shares of the Company's common stock, $0.001 par value per share ("Common
Stock"), subject to adjustment as provided herein, at a price equal to
the Exercise Price as defined in Section 3 below, at any time beginning
on the Date of Issuance (defined below) and ending at 5:00 p.m., New
York, New York time, on the date that is five (5) years after the date of
a Merger, as defined below (the "Exercise Period"). The Company shall
use its best efforts to consummate a transaction as soon as practicable
after the date hereof whereby a private company ("Private Company") is
merged into the Company (a "Merger"). For purposes hereof, "X" shall
equal 8% of the number of outstanding shares of Common Stock of the
Company, on a fully diluted basis, immediately following a Merger.
Holder agrees with the Company that this Warrant to Purchase Common
Stock of the Company (this "Warrant") is issued and all rights hereunder
shall be held subject to all of the conditions, limitations and
provisions set forth herein.
1. DATE OF ISSUANCE AND TERM.
This Warrant shall be deemed to be issued on February 6, 2001 ("Date
of Issuance"). The term of this Warrant is from the Date of Issuance
through the date that is five (5) years after the date of a Merger.
This Warrant is fully exercisable any time after a Merger has
occurred.
Notwithstanding anything to the contrary herein, the applicable
portion of this Warrant shall not be exercisable during any time that,
and only to the extent that, the number of shares of Common Stock to be
issued to Holder upon such exercise, when added to the number of shares
of Common Stock, if any, that the Holder otherwise beneficially owns at
the time of such exercise, would equal or exceed 4.99% of the number of
shares of Common Stock then outstanding, as determined in accordance with
Section 13(d) of the Exchange Act (the "4.99% Limitation"). The 4.99%
Limitation shall be conclusively satisfied if the applicable Exercise
Notice includes a signed representation by the Holder that the issuance
of the shares in such Exercise Notice will not violate the 4.99%
Limitation, and the Company shall not be entitled to require additional
documentation of such satisfaction.
2. EXERCISE.
(A) MANNER OF EXERCISE. During the Exercise Period, this Warrant
may be exercised as to all or any lesser number of full shares of Common
Stock covered hereby (the "Warrant Shares") upon surrender of this
Warrant, with the Exercise Form attached hereto as EXHIBIT A (the
"Exercise Form") duly completed and executed, together with the full
Exercise Price (as defined below) for each share of Common Stock as to
which this Warrant is exercised, at the office of the Company, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr., President, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇; Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or at such
other office or agency as the Company may designate in writing, by
overnight mail, with an advance copy of the Exercise Form sent to the
Company and its Transfer Agent by facsimile (such surrender and payment
of the Exercise Price hereinafter called the "Exercise of this Warrant").
(B) DATE OF EXERCISE. The "Date of Exercise" of the Warrant shall
be defined as the date that the advance copy of the completed and
executed Exercise Form is sent by facsimile to the Company, provided that
the original Warrant and Exercise Form are received by the Company as
soon as practicable thereafter. Alternatively, the Date of Exercise
shall be defined as the date the original Exercise Form is received by
the Company, if Holder has not sent advance notice by facsimile.
(C) DELIVERY OF SHARES OF COMMON STOCK UPON EXERCISE. Upon any
exercise of this Warrant, the Company shall use its reasonable best
efforts to deliver, or shall cause its transfer agent to deliver, a stock
certificate or certificates representing the number of shares of Common
Stock into which this Warrant was exercised, within three (3) trading
days (the "Share Delivery Deadline") of the date that all of the
following have been received by the Company: (i) the original completed
and executed Exercise Form, (ii) the original Warrant and (iii) the
Exercise Price (if applicable)(collectively, the "Receipt Date"). Such
stock certificates shall not contain a legend restricting transfer if a
registration statement covering the resale of such shares of Common Stock
is in effect at the time of such exercise or if such shares of Common
Stock may be resold pursuant to an exemption from registration, including
but not limited to Rule 144 under the Securities Act of 1933.
(D) BUY-IN CURE. If (i) the Company fails for any reason to
deliver the requisite number of shares of Common Stock (unlegended, if so
required by the terms of this Warrant)(the "Warrant Shares") to a Holder
upon an exercise of this Warrant by the Share Delivery Deadline, (ii) the
Holder has sold some or all of the Warrant Shares (the "Sold Shares")
which such Holder anticipated receiving upon such Exercise, and (iii)
after the applicable Share Delivery Deadline with respect to such
Exercise, the broker that sold the Sold Shares for Holder purchases (in
an open market transaction or otherwise) shares of Common Stock to make
delivery upon the sale by a Holder of the Sold Shares (a "Buy-In"), the
Company shall pay such Holder within two (2) business days following
receipt of written notice of a claim pursuant to this Section 2(d) (in
addition to any other remedies available to Holder) the amount (a "Buy-In
Payment") by which (x) such Holder's total purchase price (including
brokerage commission, if any) for the shares of Common Stock so purchased
exceeds (y) the net proceeds received by such Holder from the sale of the
Sold Shares. For example, if a Holder purchases shares of Common Stock
having a total purchase price of $11,000 to cover a Buy-In with respect
to shares of Common Stock sold for $10,000, the Company will be required
to pay such Holder $1,000. A Holder shall provide the Company written
notification indicating any amounts payable to Holder pursuant to this
Section 2(d).
(E) LIQUIDATED DAMAGES. The parties hereto acknowledge and agree
that the sums payable as Buy-In Payments shall give rise to liquidated
damages and not penalties. The parties further acknowledge that (i) the
amount of loss or damages likely to be incurred by the Holder is
incapable or is difficult to precisely estimate, (ii) the amounts
specified bear a reasonable proportion and are not plainly or grossly
disproportionate to the probable loss likely to be incurred by the
Investor, and (iii) the parties are sophisticated business parties and
have been represented by sophisticated and able legal and financial
counsel and negotiated this Agreement at arm's length.
(F) CANCELLATION OF WARRANT. This Warrant shall be canceled upon
the Exercise of this Warrant, and, as soon as practical after the Date of
Exercise, Holder shall be entitled to receive Common Stock for the number
of shares purchased upon such Exercise of this Warrant, and if this
Warrant is not exercised in full, Holder shall be entitled to receive a
new Warrant (containing terms identical to this Warrant) representing any
unexercised portion of this Warrant in addition to such Common Stock.
(G) HOLDER OF RECORD. Each person in whose name any Warrant for
shares of Common Stock is issued shall, for all purposes, be deemed to be
the Holder of record of such shares on the Date of Exercise of this
Warrant, irrespective of the date of delivery of the Common Stock
purchased upon the Exercise of this Warrant. Nothing in this Warrant
shall be construed as conferring upon Holder any rights as a stockholder
of the Company.
3. PAYMENT OF WARRANT EXERCISE PRICE.
The Exercise Price per share ("Exercise Price") shall initially
equal (the "Initial Exercise Price") the Merger Valuation divided by the
number of shares of Common Stock of the combined Company outstanding at
the time of, and accounting for, the Merger, where the "Merger Valuation"
equals the agreed upon combined aggregate valuation of the Company and
the Private Company at the time of the Merger. If the Date of Exercise
is more than six (6) months after the date of a Merger (as defined
above), the Exercise Price shall be reset to equal the lesser of (i) the
Exercise Price then in effect, or (ii) the "Lowest Reset Price," as that
term is defined below. The Company shall calculate a "Reset Price" on
each six-month anniversary date of the date of a Merger, which shall
equal one hundred percent (100%) of the lowest Closing Price of the
Company's Common Stock for the five (5) trading days ending on such six-
month anniversary date of the date of the Merger. The "Lowest Reset
Price" shall equal the lowest Reset Price determined on any six-month
anniversary date of the date of a Merger preceding the Date of Exercise,
taking into account, as appropriate, any adjustments made pursuant to
Section 5 hereof.
For purposes hereof, the term "Closing Price" shall mean the closing
price on the Nasdaq Small Cap Market, the National Market System ("NMS"),
the New York Stock Exchange, or the O.T.C. Bulletin Board, or if no
longer traded on the Nasdaq Small Cap Market, the National Market System
("NMS"), the New York Stock Exchange, or the O.T.C. Bulletin Board, the
"Closing Price" shall equal the closing price on the principal national
securities exchange or the over-the-counter system on which the Common
Stock is so traded and, if not available, the mean of the high and low
prices on the principal national securities exchange on which the Common
Stock is so traded.
Payment of the Exercise Price may be made by either of the
following, or a combination thereof, at the election of Holder:
(i) CASH EXERCISE: cash, bank or cashiers check or wire transfer;
or
(ii) CASHLESS EXERCISE: The Holder, at its option, may exercise this
Warrant in a cashless exercise transaction under this subsection (ii) if
and only if, on the Date of Exercise, there is not then in effect a
current registration statement that covers the resale of the shares of
Common Stock to be issued upon exercise of this Warrant . In order to
effect a Cashless Exercise, the Holder shall surrender this Warrant at
the principal office of the Company together with notice of cashless
election, in which event the Company shall issue Holder a number of
shares of Common Stock computed using the following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant is
being exercised.
A = the Market Price of one (1) share of Common Stock (for
purposes of this Section 3(ii), the "Market Price" shall be
defined as the average Closing Price of the Common Stock for
the five (5) trading days prior to the Date of Exercise of this
Warrant (the "Average Closing Price"), as reported by the
O.T.C. Bulletin Board, National Association of Securities
Dealers Automated Quotation System ("Nasdaq") Small Cap Market,
or if the Common Stock is not traded on the Nasdaq Small Cap
Market, the Average Closing Price in any other over-the-counter
market; provided, however, that if the Common Stock is listed
on a stock exchange, the Market Price shall be the Average
Closing Price on such exchange for the five (5) trading days
prior to the date of exercise of the Warrants. If the Common
Stock is/was not traded during the five (5) trading days prior
to the Date of Exercise, then the closing price for the last
publicly traded day shall be deemed to be the closing price for
any and all (if applicable) days during such five (5) trading
day period.
B = the Exercise Price.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Common Stock issuable upon
exercise of this Warrant in a cashless exercise transaction shall be
deemed to have been acquired at the time this Warrant was issued.
Moreover, it is intended, understood and acknowledged that the holding
period for the Common Stock issuable upon exercise of this Warrant in a
cashless exercise transaction shall be deemed to have commenced on the
date this Warrant was issued.
4. TRANSFER AND REGISTRATION.
(a) TRANSFER RIGHTS. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in
whole or in part, in person or by attorney, upon surrender of this
Warrant properly completed and endorsed. This Warrant shall be canceled
upon such surrender and, as soon as practicable thereafter, the person to
whom such transfer is made shall be entitled to receive a new Warrant or
Warrants as to the portion of this Warrant transferred, and Holder shall
be entitled to receive a new Warrant as to the portion hereof retained.
(b) REGISTRABLE SECURITIES. In addition to any other registration
rights of the Holder, if the Common Stock issuable upon exercise of this
Warrant is not registered for resale at the time the Company proposes to
register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its Common Stock
under the Act (other than a registration relating solely for the sale of
securities to participants in a Company stock plan or a registration on
Form S-4 promulgated under the Act or any successor or similar form
registering stock issuable upon a reclassification, upon a business
combination involving an exchange of securities or upon an exchange offer
for securities of the issuer or another entity)(a "Piggyback Registration
Statement"), the Company shall cause to be included in such Piggyback
Registration Statement ("Piggyback Registration") all of the Common Stock
issuable upon the exercise of this Warrant ("Registrable Securities") to
the extent such inclusion does not violate the registration rights of any
other securityholder of the Company granted prior to the date hereof.
Nothing herein shall prevent the Company from withdrawing or abandoning
the Piggyback Registration Statement prior to its effectiveness.
(c) LIMITATION ON OBLIGATIONS TO REGISTER UNDER A PIGGYBACK
REGISTRATION. In the case of a Piggyback Registration pursuant to an
underwritten public offering by the Company, if the managing underwriter
determines and advises in writing that the inclusion in the registration
statement of all Registrable Securities proposed to be included would
interfere with the successful marketing of the securities proposed to be
registered by the Company, then the number of such Registrable Securities
to be included in the Piggyback Registration Statement, to the extent
such Registrable Securities may be included in such Piggyback
Registration Statement, shall be allocated among all Holders who had
requested Piggyback Registration pursuant to the terms hereof, in the
proportion that the number of Registrable Securities which each such
Holder seeks to register bears to the total number of Registrable
Securities sought to be included by all Holders. If required by the
managing underwriter of such an underwritten public offering, the Holders
shall enter into a reasonable agreement limiting the number of
Registrable Securities to be included in such Piggyback Registration
Statement and the terms, if any, regarding the future sale of such
Registrable Securities.
5. ANTI-DILUTION ADJUSTMENTS.
(a) STOCK DIVIDEND. If the Company shall at any time declare a
dividend payable in shares of Common Stock, then Holder, upon Exercise of
this Warrant after the record date for the determination of holders of
Common Stock entitled to receive such dividend, shall be entitled to
receive upon Exercise of this Warrant, in addition to the number of
shares of Common Stock as to which this Warrant is exercised, such
additional shares of Common Stock as such Holder would have received had
this Warrant been exercised immediately prior to such record date and the
Exercise Price will be proportionately adjusted.
(b) RECAPITALIZATION OR RECLASSIFICATION.
(i) STOCK SPLIT. If the Company shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a LARGER number of shares (a "Stock Split"), then upon
the effective date thereof, the number of shares of Common Stock which
Holder shall be entitled to purchase upon Exercise of this Warrant shall
be increased in direct proportion to the increase in the number of shares
of Common Stock by reason of such recapitalization, reclassification or
similar transaction, and the Exercise Price shall be proportionally
decreased.
(ii) REVERSE STOCK SPLIT. If the Company shall at any time
effect a recapitalization, reclassification or other similar transaction
of such character that the shares of Common Stock shall be changed into
or become exchangeable for a SMALLER number of shares (a "Reverse Stock
Split"), then upon the effective date thereof, the number of shares of
Common Stock which Holder shall be entitled to purchase upon Exercise of
this Warrant shall be proportionately decreased and the Exercise Price
shall be proportionally increased. The Company shall give Holder the
same notice it provides to holders of Common Stock of any transaction
described in this Section 5(b).
(c) DISTRIBUTIONS. If the Company shall at any time distribute for
no consideration to holders of Common Stock cash, evidences of
indebtedness or other securities or assets (other than cash dividends or
distributions payable out of earned surplus or net profits for the
current or preceding years) then, in any such case, Holder shall be
entitled to receive, upon Exercise of this Warrant, with respect to each
share of Common Stock issuable upon such exercise, the amount of cash or
evidences of indebtedness or other securities or assets which Holder
would have been entitled to receive with respect to each such share of
Common Stock as a result of the happening of such event had this Warrant
been exercised immediately prior to the record date or other date fixing
shareholders to be affected by such event (the "Determination Date") or,
in lieu thereof, if the Board of Directors of the Company should so
determine at the time of such distribution, a reduced Exercise Price
determined by multiplying the Exercise Price on the Determination Date by
a fraction, the numerator of which is the result of such Exercise Price
reduced by the value of such distribution applicable to one share of
Common Stock (such value to be determined by the Board of Directors of
the Company in its discretion) and the denominator of which is such
Exercise Price.
(d) NOTICE OF CONSOLIDATION OR MERGER AND WARRANT EXCHANGE. The
Company shall not, at any time after the date hereof, effect a merger,
consolidation, exchange of shares, recapitalization, reorganization, or
other similar event, as a result of which shares of Common Stock shall be
changed into the same or a different number of shares of the same or
another class or classes of stock or securities or other assets of the
Company or another entity or there is a sale of all or substantially all
the Company's assets (a "Corporate Change"), unless the resulting
successor or acquiring entity (the "Resulting Entity") assumes by written
instrument the Company's obligations under this Warrant, including but
not limited to the Exercise Price reset provisions as provided herein
during the term of the resultant warrants, and agrees in such written
instrument that this Warrant shall be exerciseable into such class and
type of securities or other assets of the Resulting Entity as Holder
would have received had Holder exercised this Warrant immediately prior
to such Corporate Change, and the Exercise Price of this Warrant shall be
proportionately increased (if this Warrant shall be changed into or
become exchangeable for a warrant to purchase a smaller number of shares
of Common Stock of the Resulting Entity) or shall be proportionately
decreased (if this Warrant shall be changed or become exchangeable for a
warrant to purchase a larger number of shares of Common Stock of the
Resulting Entity); provided, however, that Company may not affect any
Corporate Change unless it first shall have given thirty (30) days notice
to Holder hereof of any Corporate Change.
(e) EXERCISE PRICE ADJUSTED. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in
Section 3 of this Warrant, until the occurrence of an event stated in
subsection (a), (b), (c) or (d) of this Section 5, and thereafter shall
mean said price as adjusted from time to time in accordance with the
provisions of this Warrant. No such adjustment under this Section 5
shall be made unless such adjustment would change the Exercise Price at
the time by $0.01 or more; provided, however, that all adjustments not so
made shall be deferred and made when the aggregate thereof would change
the Exercise Price at the time by $0.01 or more.
(f) ADJUSTMENTS: ADDITIONAL SHARES, SECURITIES OR ASSETS. In the
event that at any time, as a result of an adjustment made pursuant to
this Section 5, Holder shall, upon Exercise of this Warrant, become
entitled to receive shares and/or other securities or assets (other than
Common Stock) then, wherever appropriate, all references herein to shares
of Common Stock shall be deemed to refer to and include such shares
and/or other securities or assets; and thereafter the number of such
shares and/or other securities or assets shall be subject to adjustment
from time to time in a manner and upon terms as nearly equivalent as
practicable to the provisions of this Section 5.
6. FRACTIONAL INTERESTS.
No fractional shares or scrip representing fractional shares
shall be issuable upon the Exercise of this Warrant, but on Exercise of
this Warrant, Holder may purchase only a whole number of shares of Common
Stock. If, on Exercise of this Warrant, Holder would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share
of Common Stock, such fractional share shall be disregarded and the
number of shares of Common Stock issuable upon exercise shall be the next
higher number of shares.
7. RESERVATION OF SHARES.
The Company shall at all times reserve for issuance such number
of authorized and unissued shares of Common Stock (or other securities
substituted therefor as herein above provided) as shall be sufficient for
the Exercise of this Warrant and payment of the Exercise Price. The
Company covenants and agrees that upon the Exercise of this Warrant, all
shares of Common Stock issuable upon such exercise shall be duly and
validly issued, fully paid, nonassessable and not subject to preemptive
rights, rights of first refusal or similar rights of any person or
entity.
8. RESTRICTIONS ON TRANSFER.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant has been
issued in a transaction exempt from the registration requirements of the
Act by virtue of Regulation D and exempt from state registration under
applicable state laws. The Warrant and the Common Stock issuable upon the
Exercise of this Warrant may not be pledged, transferred, sold or
assigned except pursuant to an effective registration statement or unless
the Company has received an opinion from the Company's counsel to the
effect that such registration is not required, or the Holder has
furnished to the Company an opinion of the Holder's counsel, which
counsel shall be reasonably satisfactory to the Company, to the effect
that such registration is not required; the transfer complies with any
applicable state securities laws; and, if no registration covering the
resale of the Warrant Shares is effective at the time the Warrant Shares
are issued, the Holder consents to a legend being placed on certificates
for the Warrant Shares stating that the securities have not been
registered under the Securities Act and referring to such restrictions on
transferability and sale.
(b) ASSIGNMENT. If Holder can provide the Company with
reasonably satisfactory evidence that the conditions of (a) above
regarding registration or exemption have been satisfied, Holder may sell,
transfer, assign, pledge or otherwise dispose of this Warrant, in whole
or in part. Holder shall deliver a written notice to Company,
substantially in the form of the Assignment attached hereto as EXHIBIT B,
indicating the person or persons to whom the Warrant shall be assigned
and the respective number of warrants to be assigned to each assignee.
The Company shall effect the assignment within ten (10) days, and shall
deliver to the assignee(s) designated by Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of shares.
9. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to confer upon any
person other than the Company and Holder any legal or equitable right,
remedy or claim under this Warrant and this Warrant shall be for the sole
and exclusive benefit of the Company and Holder.
10. APPLICABLE LAW; ARBITRATION.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia applicable to agreements made in
and wholly to be performed in that jurisdiction, except for matters
arising under the Act or the Securities Exchange Act of 1934, which
matters shall be construed and interpreted in accordance with such laws.
Any controversy or claim arising out of or related to this Warrant or the
breach thereof, shall be settled by binding arbitration in Atlanta,
Georgia in accordance with the Expedited Procedures (Rules 53-57) of the
Commercial Arbitration Rules of the American Arbitration Association
("AAA"). A proceeding shall be commenced upon written demand by Company
or any Investor to the other. The arbitrator(s) shall enter a judgment
by default against any party, which fails or refuses to appear in any
properly noticed arbitration proceeding. The proceeding shall be
conducted by one (1) arbitrator, unless the amount alleged to be in
dispute exceeds two hundred fifty thousand dollars ($250,000), in which
case three (3) arbitrators shall preside. The arbitrator(s) will be
chosen by the parties from a list provided by the AAA, and if they are
unable to agree within ten (10) days, the AAA shall select the
arbitrator(s). The arbitrators must be experts in securities law and
financial transactions. The arbitrators shall assess costs and expenses
of the arbitration, including all attorneys' and experts' fees, as the
arbitrators believe is appropriate in light of the merits of the parties'
respective positions in the issues in dispute. Each party submits
irrevocably to the jurisdiction of any state court sitting in Atlanta,
Georgia or to the United States District Court sitting in Georgia for
purposes of enforcement of any discovery order, judgment or award in
connection with such arbitration. The award of the arbitrator(s) shall
be final and binding upon the parties and may be enforced in any court
having jurisdiction. The arbitration shall be held in such place as set
by the arbitrator(s) in accordance with Rule 55.
Although the parties, as expressed above, agree that all
claims, including claims that are equitable in nature, for example
specific performance, shall initially be prosecuted in the binding
arbitration procedure outlined above, if the arbitration panel dismisses
or otherwise fails to entertain any or all of the equitable claims
asserted by reason of the fact that it lacks jurisdiction, power and/or
authority to consider such claims and/or direct the remedy requested,
then, in only that event, will the parties have the right to initiate
litigation respecting such equitable claims or remedies. The forum for
such equitable relief shall be in either a state or federal court sitting
in Atlanta, Georgia. Each party waives any right to a trial by jury,
assuming such right exists in an equitable proceeding, and irrevocably
submits to the jurisdiction of said Georgia court.
11. LOSS OF WARRANT.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnity or security reasonably satisfactory to
the Company, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver a new Warrant of like
tenor and date.
12. NOTICE OR DEMANDS.
Notices or demands pursuant to this Warrant to be given or made by Holder
to or on the Company shall be sufficiently given or made if sent by
certified or registered mail, return receipt requested, postage prepaid,
and addressed, until another address is designated in writing by the
Company, to the address set forth in Section 2(a) above. Notices or
demands pursuant to this Warrant to be given or made by the Company to or
on Holder shall be sufficiently given or made if sent by certified or
registered mail, return receipt requested, postage prepaid, and addressed,
to the address of Holder set forth in the Company's records, until another
address is designated in writing by Holder.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of
the 17th day of April, 2001.
PROVIDENCE CAPITAL IX, INC.
By: ________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr., President
EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: PROVIDENCE CAPITAL IX, INC.
The undersigned hereby irrevocably exercises the right to purchase
____________ of the shares of Common Stock (the "Common Stock") of
Providence Capital IX, Inc. a Colorado corporation (the "Company"),
evidenced by the attached warrant (the "Warrant"), and herewith makes
payment of the exercise price with respect to such shares in full, all in
accordance with the conditions and provisions of said Warrant.
1. The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any of the Common Stock obtained on exercise of the Warrant,
except in accordance with the provisions of Section 8(a) of the Warrant.
2. The undersigned requests that stock certificates for such shares be
issued free of any restrictive legend, if appropriate, and a warrant
representing any unexercised portion hereof be issued, pursuant to the
Warrant in the name of the undersigned and delivered to the undersigned
at the address set forth below:
Dated: __________________________
_________________________________
Signature
_________________________________
Print Name
_________________________________
Address
_________________________________
NOTICE
The signature to the foregoing Exercise Form must correspond to the name
as written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
________________________________________________________________________
EXHIBIT B
ASSIGNMENT
(To be executed by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned holder of the attached warrant (the
"Warrant") hereby sells, assigns and transfers unto the person or persons
below named the right to purchase _______ shares of the Common Stock of
Providence Capital IX, Inc., evidenced by the attached Warrant and does
hereby irrevocably constitute and appoint _______________________
attorney to transfer the said Warrant on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________________
Signature
Fill in for new registration of Warrant:
___________________________________
Name
___________________________________
Address
___________________________________
Please print name and address of assignee
(including zip code number)
_______________________________________________________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as
Written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.