NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT WERE
ISSUED IN A REGISTERED TRANSACTION UNDER THE SECURITIES ACT OF 1933 (AS AMENDED,
THE "SECURITIES ACT"). THE SECURITIES EVIDENCED HEREBY MAY NOT BE TRANSFERRED
WITHOUT (i) AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH TRANSFER
MAY BE LAWFULLY MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND ALL
APPLICABLE STATE SECURITIES LAW; OR (ii) SUCH REGISTRATION.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
ELDORADO ARTESIAN SPRINGS, INC.
Warrant No. CMB - 1
THIS WARRANT TO PURCHASE SHARES OF COMMON STOCK ("WARRANT") CERTIFIES THAT,
for value received, Capital Merchant Bank, LLC, an Illinois limited liability
company, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Holder"), is entitled
to subscribe for and purchase from Eldorado Artesian Springs, Inc. (the
"Company"), a corporation organized and existing under the laws of the State of
Colorado, at the Warrant Exercise Price specified below during the exercise
period specified below to and including January 4, 2008 (the "Expiration Date")
One Million (1,000,000) fully paid and nonassessable shares of Common Stock,
$0.001 par value per share, of the Company (the "Common Stock") (subject to
vesting and adjustment as noted below).
The exercise price of this Warrant (subject to adjustment as noted below)
shall be three dollars ($3.00) per share (the "Warrant Exercise Price"). This
Warrant is issued on January 4, 2005.
This Warrant is subject to the following provisions, terms, and conditions:
1. Vesting and Exercise.
(a) This Warrant shall be exercisable at any time, as to the amount of then
Vested Shares (as defined below) or any portion thereof, by the registered
Holder by payment of the Warrant Exercise Price per share in immediately
available funds to the Company at any time prior to 5:00 p.m., Colorado time, on
the Expiration Date.
(b) The number of shares of Common Stock for which this Warrant shall be
exercisable at any time (the "Vested Shares") shall be determined as follows:
the amount of Vested Shares from and after the date of issuance set forth above
shall be 350,000; an additional 350,000 shares shall become Vested Shares upon
the Company's payment of the "2nd Installment," as defined in Exhibit A, Part
III(B) to that certain Management Consulting and Finders Agreement dated as of
January 4, 2005, by and between the Company and the Holder (the "Consulting
Agreement"); and the remaining 300,000 shares shall become Vested Shares upon
the Company's payment of the "3rd Installment," as defined in Exhibit A, Part
III(B) to the Consulting Agreement; provided, however, that there shall be no
vesting from and after the date of termination of the Consulting Agreement, and
no shares shall become Vested Shares on or after that date.
(c) In addition to and without limiting the rights of the Holder under the
terms of this Warrant, the Holder may elect to surrender this Warrant or any
portion thereof for the purchase of Vested Shares of Common Stock, the aggregate
value of which shares shall be equal to the amount by which the fair market
value per share exceeds the Warrant Exercise Price per share times the number of
Warrants surrendered (a "Cashless Exercise"). To exercise this Warrant by
Cashless Exercise, the Holder shall surrender this Warrant at the principal
office of the Company together with notice of the Holder's intention to utilize
the Cashless Exercise procedure, in which event the Company shall issue to the
Holder the number of shares of the Company's Common Stock computed using the
following formula:
X = PY (A-B)
--------
A
Where:
X = The number of shares of Common Stock to be issued to the
Holder.
P = The percentage of Vested Shares underlying this Warrant
being exercised.
Y = The number of Vested Shares purchasable under this
Warrant.
A = The fair market value of one share of the Company's Common
Stock, as quoted on the over-the-counter bulletin board, or
its successor, at the close of trading on the last trading
day preceding the date of exercise; or if not so quoted, at
a price determined by a reputable investment banker selected
by ▇▇▇▇▇▇ and reasonably acceptable to the Company.
B = Exercise Price.
2. Representations and Warranties. The Company represents and warrants
that:
(a) the Company has all requisite power and authority to execute,
issue and perform this Warrant and to issue the Common Stock;
(b) this Warrant has been duly authorized by all necessary corporate
action, has been duly executed and delivered, and is a legal and binding
obligation of the Company;
(c) all shares which may be issued upon the exercise of the rights
represented by this Warrant according to the terms hereof or represented by
the Common Stock will, upon issuance, be duly authorized and issued, fully
paid, and nonassessable; and
(d) during the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized,
and reserved for the purpose of issue or transfer upon exercise of the
subscription rights evidenced by this Warrant, a sufficient number of
shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant.
3. Adjustments.
(a) In case the Company shall
(i) declare a dividend upon the Common Stock payable in Common
Stock (other than a dividend declared to effect a
subdivision of the outstanding shares of Common Stock, as
described in subparagraph (b) below) or any obligations or
any shares of stock of the Company which are convertible
into or exchangeable for Common Stock (such obligations or
shares of stock being hereinafter referred to as
"Convertible Securities"), or in any rights or options to
purchase any Common Stock or Convertible Securities, or
(ii) declare any other dividend or make any other distribution
upon the Common Stock payable otherwise than out of earnings
or earned surplus,
then thereafter the holder of this Warrant upon the exercise hereof will be
entitled to receive the number of shares of Common Stock to which such
holder shall be entitled upon such exercise, and, in addition and without
further payment therefor, such number of shares of Common Stock, such that
upon exercise hereof, such holder would receive as a result of each
dividend described in clause (i) above and each dividend or distribution
described in clause (ii) above which such holder would have received by way
of any such dividend or distribution if, continuously since the record date
for any such dividend or distribution, such holder (x) had been the record
holder of the number of shares of Common Stock then received, and (y) had
retained all dividends or distributions in stock or securities (including
Common Stock or Convertible Securities, or in any rights or options to
purchase any Common Stock or Convertible Securities) payable in respect of
such Common Stock or in respect of any stock or securities paid as
dividends or distributions and originating directly or indirectly from such
Common Stock. For the purposes of the foregoing, a dividend or distribution
other than in cash shall be considered payable out of earnings or surplus
only to the extent that such earnings or surplus are charged an amount
equal to the fair value of such dividend as determined by the Board of
Directors of the Company.
(b) In case the Company shall at any time subdivide its outstanding
shares of Common Stock into a greater number of shares, the number of
shares subject to this Warrant immediately prior to such subdivision shall
be proportionately increased, and conversely, in case the outstanding
shares of Common Stock of the Company shall be combined into a smaller
number of shares, the number of shares subject to this Warrant immediately
prior to such combination shall be proportionately reduced.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger, or sale, lawful
and adequate provision shall be made whereby the holder hereof shall
thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in this Warrant and in lieu of the
shares of the Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented
hereby, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares
of such Common Stock equal to the number of shares of such stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger, or sale not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of the holder of this Warrant to the end that the provisions
hereof (including without limitation provisions for adjustments of the
Warrant Exercise Price and of the number of shares purchasable upon the
exercise of this Warrant) shall thereafter be applicable, as nearly as may
be, in relation to any shares of stock, securities, or assets thereafter
deliverable upon the exercise hereof.
(d) If the Company issues or grants any rights or options to subscribe
for or to purchase shares of Common Stock at a price per share of Common
Stock less than both of (I) the Warrant Exercise Price, and (II) the
then-current Market Price (as defined below) per share of Common Stock,
then the total number of shares of Common Stock issuable upon exercise of
this Warrant shall be increased by an amount determined by multiplying (I)
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such adjustment by (II) an amount determined by
dividing (i) the number of shares of Common Stock underlying the rights or
options giving rise to such adjustment by (ii) the total number of shares
of Common Stock then outstanding.
(e) Upon each adjustment in the number of shares the holder is
entitled to purchase upon exercise of this Warrant, the Warrant Exercise
Price hereunder shall be appropriately adjusted such that the Holder shall
hold Warrants entitling Holder to purchase the number of shares as so
adjusted for an aggregate Warrant Exercise Price equal to the aggregate
Warrant Exercise Price in effect immediately prior to such adjustment. Upon
any adjustment of the shares purchasable upon exercise of this Warrant, the
number of Vested Shares determined in accordance with 1(b) (and the
calculations therein with respect to the number of Vested Shares ) shall be
adjusted pro rata to reflect such adjustments to the total number of shares
purchasable upon exercise of this Warrant.
(f) In case any time:
(i) any of the adjustments required by 3(a) through (e) occur;
(ii) the Company shall make any distribution (other than regular
cash dividends) to the holders of its capital stock;
(iii)the Company shall offer for subscription pro rata to the
holders of its capital stock any additional shares of stock
of any class or other rights; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written
notice, by first-class mail, postage prepaid, addressed to the registered
holder of this Warrant at the address of such holder as shown on the books
of the Company, of the date on which (x) the books of the Company shall
close or a record shall be taken for such dividend, subdivision,
distribution, or subscription rights, or (y) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, or conversion or redemption shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of
capital stock of record shall participate in such dividend, distribution,
or subscription rights, or shall be entitled to exchange their capital
stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, or conversion or redemption, as the case may be.
Such written notice shall be given at least ten (10) days prior to the
action in question and not less than ten (10) days prior to the record date
or the date on which the Company's transfer books are closed in respect
thereto.
(g) No fractional shares of Common Stock shall be issued upon the
exercise of this Warrant, but, instead of any fraction of a share which
would otherwise be issuable, the Company shall pay a cash adjustment (which
may be effected as a reduction of the amount to be paid by the holder
hereof upon such exercise) in respect of such fraction in an amount equal
to the same fraction of the Market Price per share of Common Stock as of
the close of business on the date of the notice required by Section 3(e).
"Market Price" shall mean, if the Common Stock is traded on a securities
exchange or on the NASDAQ System, the average of the closing prices of the
Common Stock on such exchange or the NASDAQ System on the twenty (20)
trading days ending on the trading day prior to the date of determination,
or, if the Common Stock is otherwise traded in the over-the-counter market,
the average of the closing bid prices on the twenty (20) trading days
ending on the trading day prior to the date of determination. If at any
time the Common Stock is not traded on an exchange or the NASDAQ System, or
otherwise traded in the over-the-counter market, the Market Price shall be
deemed to be the higher of
(i) the book value thereof as determined by any firm of
independent public accountants of recognized standing
selected by the Board of Directors of the Company as of the
last day of any month ending within sixty (60) days
preceding the date as of which the determination is to be
made, or
(ii) the fair value thereof determined in good faith by the Board
of Directors of the Company as of a date which is within
fifteen (15) days of the date as of which the determination
is to be made.
4. No Voting Rights. This Warrant shall not entitle the Holder hereof to
any voting rights or other rights as a stockholder of the Company.
5. Restrictions on Transfer. This Warrant and the shares of Common Stock
issued or issuable through the exercise of this Warrant are "restricted
securities" under the Securities Act of 1933 (the "Securities Act") and the
rules and regulations promulgated thereunder and may not be sold, transferred,
pledged, or hypothecated without such transaction being registered under the
Securities Act and applicable state laws or the availability of an exemption
therefrom that is established to the satisfaction of the Company; a legend to
this effect shall appear on this Warrant and, unless the issuance is a
registered transaction, on all shares of Common Stock issued upon the exercise
hereof. The holder of this Warrant, by acceptance hereof, agrees to give written
notice to the Company before transferring this Warrant or transferring any
Common Stock issuable or issued upon the exercise hereof of such holder's
intention to do so, describing briefly the manner of any proposed transfer of
this Warrant or such ▇▇▇▇▇▇'s intention as to the disposition to be made of
shares of Common Stock issuable or issued upon the exercise hereof. Such holder
shall also provide the Company with an opinion of counsel satisfactory to the
Company to the effect that the proposed transfer of this Warrant or disposition
of shares may be effected without registration or qualification (under any
federal or state law) of this Warrant or the shares of Common Stock issuable or
issued upon the exercise hereof. Upon receipt of such written notice and opinion
by the Company, such holder shall be entitled to transfer this Warrant, or to
exercise this Warrant in accordance with its terms and dispose of the shares
received upon such exercise or to dispose of shares of Common Stock received
upon the previous exercise of this Warrant, all in accordance with the terms of
the notice delivered by such holder to the Company, provided that an appropriate
legend respecting the aforesaid restrictions on transfer and disposition may be
endorsed on this Warrant or the certificates for such shares.
6. Transfer Procedures. Subject to the provisions of Section 5, this
Warrant and all rights hereunder are transferable, in whole or in part, at the
principal office of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant properly endorsed. Each
taker and holder of this Warrant, by taking or holding the same, consents and
agrees that the bearer of this Warrant, when endorsed, may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding; but until such transfer on
such books, the Company may treat the registered holder hereof as the owner for
all purposes.
7. Registration Rights.
(a) If at any time the Company proposes to register the sale of shares
of Common Stock (whether for itself or any of its security holders) under
the Securities Act and the registration form to be used may be used for the
registration of shares underlying this Warrant (a "Piggyback
Registration"), the Company shall give prompt written notice to the Holder
of its intention to effect such a registration and, subject to Section 7(b)
below, shall include in such registration all shares of Common Stock
underlying this Warrant with respect to which the Company has received
▇▇▇▇▇▇'s written request for inclusion in such registration, provided that
such request must be received by Company within 20 days after the date of
the Company's notice to Holder. The Registration Expenses in all Piggyback
Registrations shall be paid by the Company.
(b) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company or a successor, and the managing
underwriters advise the Company in writing that in their opinion the number
of shares of Common Stock requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company shall exclude from
such registrations the excess amount of shares of Common Stock, and shall
include in such registration (i) first, the securities the Company proposes
to sell; (ii) second, shares of Common Stock requested to be included in
such registration by the holders of all securities of the Company having
registration rights, prorata among the owners of such securities on the
basis of the number of shares of Common Stock or equivalent shares of
Common Stock owned by each such owner, and (iii) third, other securities
requested to be included in such registration, in the Company's discretion.
(c) Whenever the Holder has requested that any shares of Common Stock
underlying this Warrant be registered pursuant to this Section 7, the
Company shall use its best efforts to effect the registration and the sale
of such shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company shall as expeditiously as
possible:
(i) notify the Holder of the effectiveness of each registration
statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such registration statement during
such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
registration statement;
(ii) furnish the Holder such number of copies of such
registration statement, each amendment and supplement
thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in
order to facilitate the disposition of the shares of Common
Stock underlying this Warrant;
(iii)use its best efforts to register or qualify the shares of
Common Stock underlying this Warrant under such other
securities or blue sky laws of such jurisdictions as Holder
reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable
Holder to consummate the disposition in such jurisdictions
of the shares of Common Stock underlying this Warrant
(provided that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this
subsection, (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in
any such jurisdiction);
(iv) notify Holder, at any time when a prospectus relating
thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading,
whereupon Holder shall cease distributing any shares of
Common Stock until, at the request of Holder, the Company
shall prepare a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such
shares of Common Stock, such prospectus shall not contain an
untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not
misleading; and
(v) use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and
in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related
prospectus or suspending the qualification of any equity
securities included in such registration statement for sale
in any jurisdiction, the Company shall use its best efforts
promptly to obtain the withdrawal of such order.
(d) All expenses incident to the Company's performance of or
compliance with this Section 7, including without limitation all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, NASD fees, printing expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company and all independent certified
public accountants, fees (up to $5,000) and disbursements of one counsel
for the Holder, underwriters (excluding discounts and commissions) and
other persons retained by the Company (all such expenses being herein
called "Registration Expenses"), shall be borne by the Company as provided
in this Section 7.
(e) The Company agrees to indemnify, to the extent permitted by law,
Holder, its officers and directors and each person who controls Holder
(within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any registration statement filed by
the Company, prospectus prepared by the Company or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the
Company by Holder expressly for use therein or by ▇▇▇▇▇▇'s failure to
deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished Holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act) to at least the same extent as
provided above with respect to the indemnification of the Holder issued by
the Company.
(f) In connection with any registration statement in which Holder is
participating, each Holder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the
extent permitted by law, shall indemnify the Company, its directors and
officers and each person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by ▇▇▇▇▇▇.
(g) Any person entitled to indemnification under this Section 7 shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to
give prompt notice shall not impair any person's right to indemnification
hereunder to the extent such failure has not prejudiced the indemnifying
party) and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall
not be subject to any liability for any settlement made by the indemnified
party without its consent. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim.
(h) The indemnification provided for under this Section 7 shall remain
in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and shall survive the transfer of
securities. In order to provide for contribution in any case in which
either (i) Holder makes a claim for indemnification pursuant to this
Section 7 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of Holder
in circumstances for which indemnification is provided under this Section
7; then, in each such case, the Company and Holder will contribute to the
aggregate losses, claims, damages or liabilities which they would otherwise
be obligated to indemnify under Sections 7(e) and 7(f) (after contribution
from others) in such proportions so that Holder is responsible for the
portion of such aggregate losses, claims, damages or liabilities
represented by the percentage that the public offering price of its shares
of Common Stock offered by the registration statement bears to the public
offering price of all securities offered by such registration statement,
and the Company is responsible for the remaining portion; provided,
however, that, no person or entity guilty of fraudulent misrepresentation,
within the meaning of Section 11(f) of the Securities Act, shall be
entitled to contribution from any person or entity who is not guilty of
such fraudulent misrepresentation.
(i) Holder may not participate in any registration under this Section
7 which is underwritten unless Holder (i) agrees to sell ▇▇▇▇▇▇'s shares of
Common Stock on the basis provided in any underwriting arrangements
approved by the Company and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements.
8. Miscellaneous.
(a) Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered
or certified mail, postage prepaid, by facsimile transmission or electronic
mail, or otherwise delivered by hand or by messenger, addressed
(i) if to a holder of this Warrant, at such ▇▇▇▇▇▇'s address set
forth on the books of the Company, or at such other address as
such holder shall have furnished to the Company in writing; or
(ii) if to the Company, one copy should be sent to the Company's
current address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other address as the Company shall have
designated by notice.
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given when delivered if delivered
personally; if sent by first class, postage prepaid mail, at the earlier of its
receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid; or, if sent by facsimile transmission or
electronic mail as of the date delivery is confirmed by the sender's equipment.
(b) Severability. If any provision of this Agreement shall be held to
be illegal, invalid, or unenforceable, such illegality, invalidity, or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid, or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid, or unenforceable provision were not contained
herein.
(c) Governing Law. This Warrant will be governed in accordance with
federal law to the extent applicable and by the internal law, not the law
of conflicts, of the State of Colorado.
IN WITNESS WHEREOF, Eldorado Artesian Springs, Inc. has caused this Warrant
to be signed by its duly authorized officer and dated as of January 4, 2005.
ELDORADO ARTESIAN SPRINGS, Inc.
By _______________________________________
Title:____________________________________
SUBSCRIPTION FORM
To be Executed by the Holder of this Warrant if such Holder
Desires to Exercise this Warrant in Whole or in Part:
To: Eldorado Artesian Springs, Inc. (the "Company")
The undersigned _____________________________________ (Social Security
number or taxpayer identification number of Subscriber:
_______________________________) hereby irrevocably elects to exercise the right
of purchase represented by this Warrant for, and to purchase thereunder,
___________ shares of the Common Stock (the "Common Stock") provided for therein
and tenders payment herewith to the order of the Company in the amount of
$___________, such payment being made as provided on the face of this Warrant.
The undersigned requests that certificates for such shares of Common Stock
be issued as follows:
Name: ______________________________________________________________
Address: ___________________________________________________________
Deliver to: ________________________________________________________
Address: ___________________________________________________________
and, if such number of shares of Common Stock shall not be all the shares of
Common Stock purchasable hereunder, that a new Warrant for the balance remaining
of the shares of Common Stock purchasable under this Warrant be registered in
the name of, and delivered to, the undersigned at the address stated above.
Dated: ____________________ _________________________________________
Signature
Note: The signature on this
Subscription Form must correspond with
the name as written upon the face of
this Warrant in every particular,
without alteration or enlargement or
any change whatever.
FORM OF ASSIGNMENT
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto this Warrant, and appoints ________________________________________ to
transfer this Warrant on the books of the Company with the full power of
substitution in the premises.
Dated: ____________________
In the presence of:
-------------------------------
-----------------------------------------
(Signature must conform in all respects
to the name of the holder as specified on
the face of this Warrant without
alteration, enlargement or any change
whatsoever, and the signature must be
guaranteed in the usual manner)