THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGE OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF...
Exhibit 4.1
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGE OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
No.
__________ Warrant to Purchase 400,000 Shares of Common Stock or Preferred Stock
(hereinafter referred to as " Common Stock / Preferred Stock ").
WARRANT
TO PURCHASE COMMON STOCK /PREFRRRED STOCK
OF
MIKTAM
TECHNOLOGIES AMERICAS, INC..
This certifies that, for
value received, __________________hereinafter
referred to as "Holder") is entitled, subject to the terms set forth below, to
purchase from Miktam Technologies Americas, Inc.., a Nevada corporation, (the
"Company"), ___________ shares of Common Stock or Preferred Stock of the
Company, as constituted on the date hereof (the "Warrant Issue Date"), upon
surrender hereof, at the principal office of the Company referred to below, with
the subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The
number, character and Exercise Price of such Common or Preferred Stock are
subject to adjustment as provided below.
The details of your
Warrant are as follows:
1. Terms
of Warrant. The purchase right represented by this
Warrant shall terminate on :
(i)
5:00
p.m., Pacific standard time on October 31, 2011,
or
(ii)
An extended time period can be granted upon the negotiation with the
Company.
2. Exercise
Price. The Exercise Price at which this Warrant may be
exercised shall be ________________ per share of Common Stock/Preferred Stock,
as adjusted from time to time pursuant to Section 11 hereof.
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3. Exercise
of Warrant.
(a) The
purchase rights represented by this Warrant are exercisable by the Holder in
whole or in part, but not for less than 1,000 shares at a time (or such less
number of shares which may then constitute the maximum number purchasable; such
number being subject to adjustment as provided in Section 11 below), at any
time, or from time to time, during the term hereof as described in Section 1
above, by the surrender of this Warrant and the Notice of Exercise annexed
hereto duly completed and executed on behalf of the Holder, at the office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company), upon payment (i) in cash or by check acceptable to the
Company, (ii) by cancellation by the Holder of indebtedness of the Company to
the Holder, or (iii) by a combination of (i) and (ii), of the purchase price of
the shares to be purchased.
(b) This
Warrant shall be deemed to have been exercised immediately prior to close of
business on the date of its surrender for exercise as provided above, and the
person entitled to received the shares of Common Stock/Preferred Stock issuable
upon such exercise shall be treated for all purposes as the holder of record of
such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within twenty (20) days
thereafter, the Company at its expense shall issue an 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 that 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.
4. No
Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would
otherwise be entitled, the Company shall either round the number of shares up to
the nearest whole share or make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement
of Warrant. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of loss,
theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory in
from and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at is expense shall execute and
deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
6. Rights
of Stockholders. Subject to Section 9 and 11 of this Warrant,
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Preferred Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance, or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised as
provided herein.
7. Transfer
of Warrant.
(a) Warrant
Register. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of the Holder or Holders. Any
Holder of this Warrant or
any
portion thereof may change his address as shown on the Warrant Register by
written notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be delivered
or given by mail to such Holder as shown on the Warrant Register and at the
address shown on the Warrant Register of the Company, the Company may treat the
Holder as shown on the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the contrary.
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(b) Warrant
Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the Preferred Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability
and Nonnegotiability of Warrant. This Warrant may not be
transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company). Subject to the provision of this Warrant with respect
to compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiated
instrument transferable by endorsement and delivery.
(d) Exchange
of Warrant Upon a Transfer. On surrender of this Warrant for
exchange, properly endorsed on the Assignment Form and subject to the provisions
of this Warrant with respect to compliance with the Act and with the limitations
on assignments and transfers and contained in this Section 7, the Company at its
expense shall issue to or on the order of the Holder a new warrant or warrants
of like tenor, in the name of the Holder or as the
Holder
(on payment by the Holder of any applicable transfer tax) may direct, for the
number of shares issuable upon exercise hereof.
(e) Compliance
with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the Shares of Common Stock/Preferred Stock or Preferred Stock to be issued upon
exercise hereof or conversion thereof are being acquired solely for the Holder's
own account and not as a nominee for any other party, and for investment, and
that the Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock/Preferred Stock or Preferred Stock to be issued upon
exercise hereof or conversion thereof except under circumstances that will not
result in a violation of the Act or any state securities laws. Upon
exercise of this Warrant, the Holder shall, if requested by the Company, confirm
in writing, in a form satisfactory to the Company, that the shares of Common
Stock/Preferred Stock so purchased are being acquired solely for the Holder's
own account and not as a nominee for any other party, for investment, and not
with a view toward distribution or resale.
(ii) This Warrant and all
shares of Common Stock/Preferred Stock or Preferred Stock issue hereof or
conversion thereof shall be stamped or imprinted with a legend in substantially
the following form (in addition to any legend required by state securities
laws):
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THE SECURITIES REPRESENTED
HEREBY HAVE BEEN ACQUIRED FORINVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF1933. SUCH
SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDEROR
THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
HEREOF TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
COMPANY.
8. Reservation
of Stock. The Company covenants that during the term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock/Preferred Stock a sufficient number of shares to provide
for the issuance of Common Stock/Preferred Stock upon the exercise of this
Warrant and, from time to time, will take all steps necessary to amend its
Articles of Incorporation (the "Articles") to provide sufficient reserves of
shares of Common Stock/Preferred Stock issuable upon exercise of the
Warrant. The Company further covenants that all shares that may be
issued upon the exercise of rights represented by this Warrant, upon exercise of
the rights represented by this Warrant and payment of the Exercise Price, all as
set forth herein, will be free from all taxes, liens and charges in respect of
the issues thereof (other than taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein). The Company agrees
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common
Stock/Preferred Stock upon the exercise of this Warrant.
9. Notices.
(a) Whenever
the Exercise Price or number of shares purchasable hereunder shall be adjusted
pursuant to Section 11 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Exercise Price and number of
shares purchasable hereunder after giving effect to such adjustment, and shall
cause a copy of such certificate to be mailed (by first-class mail, postage
prepaid) to the Holder of this Warrant.
(b) In
case:
(i) the
company shall take a record of the holders of Common Stock/Preferred Stock (or
other stock or securities at the time receivable upon the exercise of this
Warrant) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right,
or
(ii) of
any capital reorganization of the Company, any reclassification of the capital
stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any conveyance of all or substantially all of the assets
of the Company to another corporation, or
(iii) of
any voluntary dissolution, liquidation or winding up of the Company, then, and
in each such case, the Company will mail or cause to be mailed to the Holder or
Holders a notice specifying, as the case may be, (A) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, or (B)
the date on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common
Stock/Preferred Stock (or such stock or securities at the time receivable upon
the exercise of this Warrant) shall be entitled to exchange their shares of
Common Stock/Preferred Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least 15 days prior to the
date therein specified.
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(c) All such notice,
advice and communication shall be deemed to be have received (i) in the case of
personal delivery, on the date of such delivery and (ii) in the case of mailing,
on the third business days following the date of such
mailing.
10. Amendments.
(a) Any term of this Warrant may be amended with the written consent of the Company and the holders of the existing warrant. The Company shall promptly give notice to holder of Preferred Stock Warrants of any amendment effected in accordance with the Section 10.
(b) No
waivers of, or exceptions to, any term, condition or provision of this Warrant,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
11. Adjustment. The
Exercise Price and the number of shares purchasable hereunder are subject to
adjustment from time to time as follows:
(a) Merger, Sales of Assets, etc. If at any time while this Warrant, or any portion thereof, is outstanding and unexpired there shall be (i) a reorganization (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), (ii) a merger or consolidation of the Company with or into another corporation in which the Company is not the surviving entity, or a reverse triangular merger in which the
Company
is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a
holder of the shares deliverable upon exercise of this Warrant would have been
entitled to receive in such reorganization, consolidation, merger, sale or
transfer, all subject to further adjustment
as provided in this Section 11. The foregoing provisions of this
Section 11(b) shall similarly apply to successive reorganization,
consolidations, mergers, sales and
transfer
and to the stock or securities of any other corporation that are the time
receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In any events, appropriate adjustment (as
determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provision of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
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(b) Reclassification,
etc. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11. No adjustment shall be
made pursuant to this Section 11(c), upon any conversion or redemption of the
Preferred Stock which is the subject of Section 11(a).
(c) Split,
Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
(d) Adjustments
for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion
hereof, remains outstanding and unexpired the holders of the
securities
as to which purchase rights under this Warrant exist at the time shall have
received, or, on or after the record date fixed for the determination of
eligible Stockholders, shall have become entitled to receive, without payment
therefor, other or additional stock or other securities or property (other than
cash) of the Company by way of dividend, then and in each case, this Warrant
shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such other or additional stock
or other securities or
property
(other than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 11.
(e) Certificate
as to Adjustment. Upon the occurrence of each adjustment
or readjustment pursuant to this Section 11, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to
each
Holder of this Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request,
at any time, of any such Holder, furnish or cause to be furnished to such Holder
a like certificate setting forth: (i) such adjustments and readjustments; (ii)
the Exercise Price at the time in effect; and (iii) the number of shares and the
amount, if any, of other property that at the time would be received upon the
exercise of the Warrant.
(f) No
Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed
hereunder
by the Company, but will at all times in good faith assist in the carrying out
of all the provision of this Section 11 and in the taking of all such action as
may be necessary or appropriate
in order to protect the rights of the Holders of this Warrant against
impairment.
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12. Registration
Rights. Upon exercise of this Warrant, the Holder
shall have and be entitled to exercise, together with all other holders of
Registrable Securities possessing registration rights under that certain
Registration Rights Agreement, of even date herewith, between the Company and
the parties who have executed the counterpart signature pages thereto or are
otherwise bound thereby (the "Registration Rights Agreement"), the rights
of
registration
granted under the Registration Rights Agreement (with respect to the Shares
issued on exercise of this Warranty). By its receipt of this Warrant,
Holder agrees to be bound by the Registration Rights Agreement Upon exercise of
this Warrant as a party thereto.
13. Miscellaneous
13.1 Governing
Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California.
13.2 Severability. Any
invalidity, illegality, or limitation of the enforceability with respect to any
Purchaser of any one or more of the provisions of this Agreement, or any
part
thereof,
whether arising by reason of the law of any such Purchaser's domicile or
otherwise, shall in no way affect or impair the validity, legality, or
enforceable and to retain as nearly as
practicable
the intent of the parties, and the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
13.3 Fees
and Expenses. The Company and the Purchasers shall
each bear the fees, costs and expenses of their own legal and financial advisors
relating to this Agreement and the transactions contemplated by such
agreements. If legal action is brought to enforce or interpret this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and legal costs in connection therewith.
13.4 Titles
and Subtitles. The titles of the subtitles used in
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
13.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument.
IN
WITNESS WHEREOF, MIKTAM TECHNOLOGIES AMERICAS, INC.. has caused this
Warrant
to be executed by its officers thereunto duly authorized.
Dated:
|
COMPANY:
By:
_____________________
▇▇▇▇▇▇
▇▇▇▇
CEO/
President
|
HOLDER:
By:
_____________________
Name:
|
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NOTICE
OF EXERCISE
To: Miktam
Technologies Americas, Inc..
(1) The undersigned hereby
elects to purchase _____________shares
of Common Stock or Preferred Stock of Miktam Technologies Americas, Inc..,
pursuant to the terms of the attached Warrant, and tenders herewith payment of
the purchase price of such shares in full.
(2) In exercising this
Warrant, the undersigned hereby confirms and acknowledges that the shares of
Common Stock/Preferred Stock thereof are being acquired solely for the account
of the undersigned and not as a nominee for any other party, and for investment,
and that the undersigned will not offer, sell or otherwise dispose of any such
shares of Common Stock/Preferred Stock except under circumstances that will no
result in a violation of the Security Act of 1933, as amended, or any state
securities laws.
(3) Please issue a
certificate or certificate representing said shares of Common Stock/Preferred
Stock in the name of the undersigned or in such other name as is specified
below:
______________________
[Name]
______________________
[Name]
(4) Please issue a new
Warrant for the unexercised portion of the attached Warrant in the name of the
undersigned or in such other name as is specified below:
______________________
[name]
Date:_____________________
By: _____________________[signature]
Name:
___________________
Title: ____________________
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