EXHIBIT 10.39
THIS COMMON STOCK PURCHASE WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
OTHER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS EITHER (I) SUCH
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OF 1933 AND REGISTERED OR
QUALIFIED UNDER ANY OTHER APPLICABLE SECURITIES STATUTE, OR (II) SUCH SECURITIES
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES STATUTE. THE
CORPORATION MAY, IN ITS DISCRETION, REQUIRE DELIVERY OF AN OPINION OF COUNSEL,
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION, TO THE EFFECT
SUCH EXEMPTIONS ARE AVAILABLE FOR THE OFFER, SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION OF THE SHARES REPRESENTED HEREBY.
COMMON STOCK PURCHASE WARRANT
______, 2003
MigraTEC, Inc., a Delaware corporation (the "Corporation") does hereby
certify and agree that, for good and valuable consideration (the existence,
sufficiency and receipt of which are hereby acknowledged by the Corporation),
_________________ (the "Holder") is entitled to purchase from the Corporation,
during the term set forth in Section 1 hereof, up to an aggregate amount of
_______ shares (the "Exercise Quantity") of duly authorized, validly issued,
fully paid and non-assessable shares of common stock, par value $0.001 per
share, of the Corporation ("Common Stock"), all upon the terms and provisions
(and subject to adjustment of such Exercise Quantity) of this Common Stock
Purchase Warrant (the "Warrant"). The exercise price per share of Common Stock
for which this Warrant is exercisable shall be $0.01 (the "Exercise Price").
1. Term of the Warrant. The term of this Warrant commences as of the
date hereof, and shall expire at 5:00 P.M., Central time, on _____, 2008.
2. Investment Representations.
(a) The Holder has carefully reviewed and understands the risk of an
investment in the Corporation; is able to bear the economic risk of an
investment in this Warrant and the Warrant Securities (as defined herein); can
withstand a complete loss of its investment in this Warrant and the Warrant
Securities; can hold this Warrant and the Warrant Securities for an indefinite
period of time;
and has the net worth to undertake these risks. The Holder believes that it,
either alone or together with its advisors, has the knowledge and experience in
business and financial matters that make it capable of evaluating the merits and
risks of an investment in this Warrant and the Warrant Securities.
(b) The Holder understands that an investment in this Warrant and the
Warrant Securities is highly speculative. The Holder believes an investment in
this Warrant and the Warrant Securities is suitable for it based upon its
investment objectives and financial needs, and the Holder has no need for
liquidity in its investment in this Warrant and the Warrant Securities.
(c) This Warrant and the Warrant Securities are being acquired solely
for the Holder's own account and not as a nominee for any other party and the
Holder will not offer, sell or otherwise dispose of this Warrant or any Common
Stock or any other securities of the Corporation that may at any time be issued
upon exercise hereof except under circumstances that will not result in a
violation of the Securities Act of 1933, as amended (the "Act") or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Corporation, confirm in writing, in a form satisfactory to the
Corporation, that the Common Stock or other securities 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.
(d) The Holder understands and acknowledges that (i) this Warrant and
the Warrant Securities will, after issuance, be "restricted securities," as that
term is defined in Rule 144 promulgated under the Act; (ii) this Warrant and the
Warrant Securities are being offered and sold pursuant to an exemption from
registration under the Act; and (iii) the transactions contemplated in this
Warrant have not been reviewed or passed upon by any federal or state agency.
(e) The Holder is an "accredited investor" as defined in Regulation D
promulgated under the Act.
(f) The Holder understands and acknowledges that the Corporation is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Holder set forth herein in
order to determine the suitability of the Holder to acquire this Warrant and the
Warrant Securities and the Holder hereby consents to such reliance.
3. Exercise of Warrant.
(a) This Warrant may be exercised by the Holder of this
Warrant at any time during the term hereof, in whole or in part, from
time to time (but not for fractional shares, unless this Warrant is
exercised in whole), by presentation and surrender of this Warrant to
the Corporation, together with the annexed Exercise Form duly completed
and executed and payment in the aggregate amount equal to the Exercise
Price multiplied by the number of shares of Common Stock being
purchased. At the option of the Holder, payment of the Exercise Price
may be made either by (i) certified check payable to the order of the
Corporation, (ii) surrender
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of certificates then held representing, or deduction from the number of
shares issuable upon exercise of this Warrant, of that number of shares
which has an aggregate Fair Value on the date of exercise equal to the
aggregate Exercise Price for all shares to be purchased pursuant to
this Warrant, or (iii) by any combination of the foregoing methods.
Within five (5) business days of the Corporation's receipt of this
Warrant, the completed and signed Exercise Form and the requisite
payment (if any), the Corporation shall issue and deliver (or cause to
be delivered) to the exercising Holder stock certificates aggregating
the number of shares of Common Stock purchasable or purchased from time
to time under this Warrant (the "Warrant Securities") or acquirable or
acquired upon any transfer of any such securities, together with all
additional securities receivable or received in payment of dividends or
distributions on or splits of those securities or receivable or
received as a result of adjustments.
(b) "Fair Value" as of a particular date means the closing
asked price of the Common Stock as reported on a national securities
exchange or on the NASDAQ SmallCap, National Market System or OTC
Bulletin Board Service (collectively, and as applicable, "NASDAQ") or,
if a last asked quotation is not available for the Common Stock, the
last sale price of the Common Stock as reported by NASDAQ, or if not so
reported, as listed in the National Quotation Bureau, Inc.'s "Pink
Sheets." If such quotations are unavailable, or with respect to other
appropriate security, property, assets, business or entity, Fair Value
shall mean the fair value of such item as determined by the
Corporation's Board of Directors in its good faith judgment.
(c) In the event the Holder of this Warrant desires that any
or all of the stock certificates to be issued upon the exercise hereof
be registered in a name or names other than that of the Holder of this
Warrant, the Holder must (i) so request in writing at the time of
exercise if the transfer is not a registered transfer, and (ii) provide
to the Corporation evidence reasonably satisfactory to the Corporation
to the effect that the proposed transfer may be effected without
registration under the Act.
(d) Upon the due exercise by the Holder of this Warrant,
whether in whole or in part, the Holder (or any other person to whom a
stock certificate is to be so issued) shall be deemed for all purposes
to have become the Holder of record of the shares of Common Stock for
which this Warrant has been so exercised, effective immediately prior
to the close of business on the date this Warrant, the completed and
signed Exercise Form and the requisite payment were duly delivered to
the Corporation, irrespective of the date of actual delivery of
certificates representing such shares of Common Stock so issued.
4. Surrender of Warrant; Expenses.
(a) Whether in connection with the exercise, exchange or
registration of transfer or replacement of this Warrant, surrender of
this Warrant shall be made to the Corporation during
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normal business hours on a business day (unless the Corporation
otherwise permits) at the executive offices of the Corporation or to
such other office or duly authorized representative of the Corporation
as from time to time may be designated by the Corporation by written
notice given to the Holder of this Warrant.
(b) The Corporation shall pay all costs and expenses incurred
in connection with the exercise, registration, exchange, transfer or
replacement of this Warrant, including the costs of preparation,
execution and delivery of warrants and stock certificates, and shall
pay all taxes (other than any taxes measured by the income of any
individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, estate, unincorporated
organization, joint venture, court or governmental or political
subdivision or agency thereof (each being a "Person" other than the
Corporation) and other charges imposed by law payable in connection
with the transfer or replacement of this Warrant.
(c) The Corporation shall deliver or cause to be delivered to
the Holder exercising this Warrant or any portion hereof certificates
representing the shares of Common Stock issuable upon such exercise
within five (5) business days of the surrender and delivery by the
Holder to the Corporation of this Warrant and a duly completed Exercise
Form and the requisite payment.
5. Warrant Register; Exchange; Loss.
(a) The Corporation 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
Corporation 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 the Holder as shown on the Warrant Register and at the
address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register of the Corporation, the Corporation
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.
(b) This Warrant may be exchanged for two or more warrants
entitling the identical Holder hereof to purchase the same aggregate
Exercise Quantity at the same Exercise Price per share and otherwise
having the same terms and provisions as this Warrant. The identical
Holder may request such an exchange by surrender of this Warrant to the
Corporation, together with a written exchange request specifying the
desired number of warrants and allocation of the Exercise Quantity
purchasable under the existing Warrant.
(c) Upon receipt by the Corporation of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction
or mutilation of this Warrant, and (i) in the case of loss, theft or
destruction, upon receipt by the Corporation of indemnity reasonably
satisfactory
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to it, or (ii) in the case of mutilation, upon surrender and
cancellation thereof, the Corporation, at its expense, will execute,
register and deliver, in lieu thereof, a new certificate or instrument
for (or covering the purchase of) this Warrant.
(d) The Corporation will not close its books against the
transfer of this Warrant or any of the Warrant Securities in any manner
which interferes with the timely exercise of this Warrant. The
Corporation will from time to time take all such action as may be
necessary to assure that the par value per share of the unissued Common
Stock acquirable upon exercise of this Warrant is at all times equal or
less than the Exercise Price then in effect.
6. Transfer of Warrant.
(a) This Warrant and the Warrant Securities may not be
transferred or assigned 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 Corporation, if such are
requested or required by the Corporation). Subject to the provisions of
this Warrant with respect to compliance with the Act, and applicable
state securities laws, this Warrant and the Warrant Securities may be
transferred by endorsement (by the Holder executing the Assignment Form
annexed hereto) and delivery of the same.
(b) A transfer may be registered with the Corporation by
submission to it of this Warrant, together with the annexed Assignment
Form duly completed and executed, and if the transfer is not a
registered transfer, evidence reasonably satisfactory to the
Corporation that such transfer is in compliance with federal and state
securities laws. Within five (5) business days after the Corporation's
receipt of this Warrant and the Assignment Form so completed and
executed, the Corporation will issue and deliver to the transferee a
new Warrant representing the portion of the Exercise Quantity
transferred at the same Exercise Price per share and otherwise having
the same terms and provisions as this Warrant, which the Corporation
will register in the new Holder's name.
(c) On surrender of this Warrant for exchange, properly
endorsed on the Assignment Form and subject to the provisions of this
Warrant, the Corporation 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 taxes) may direct, for the number of shares
issuable upon exercise hereof.
(d) Compliance with Securities Laws and Legends. All Common
Stock or any other securities of the Corporation that may at any time
be issued upon exercise 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 SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY OTHER APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF UNLESS EITHER (I)
SUCH SHARES ARE REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND REGISTERED OR QUALIFIED UNDER ANY OTHER
APPLICABLE SECURITIES STATUTE, OR (II) SUCH SHARES
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
OR OTHERWISE DISPOSED OF PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933 AND ANY OTHER APPLICABLE SECURITIES
STATUTE. THE CORPORATION MAY, IN ITS DISCRETION,
REQUIRE DELIVERY OF AN OPINION OF COUNSEL, IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE
CORPORATION, TO THE EFFECT SUCH EXEMPTIONS ARE
AVAILABLE FOR THE OFFER, SALE, TRANSFER, PLEDGE OR
OTHER DISPOSITION OF THE SHARES REPRESENTED HEREBY.
7. Registration Rights. The Holder shall be entitled to piggyback
registration rights with respect to the Warrant Securities in connection with
either (i) the Corporation's registration statement on Form SB-2 (File no.
333-104797), which also constitutes a post-effective amendment to the
Corporation's registration statement on Form SB-2 (File no. 333-44946), or (ii)
the first post-effective amendment to the Corporation's registration statement
on Form SB-2 (File no. 333-44946) filed by the Corporation with the Securities
and Exchange Commission after the date hereof.
8. Rights and Obligations of the Corporation and the Holder. This
Warrant shall not entitle its Holder to any rights of a stockholder in the
Corporation (other than as provided herein).
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IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized representative as of the date first above
written.
MIGRATEC, INC.
By:
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
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MigraTEC, Inc.
EXERCISE FORM
MigraTEC, Inc. (the "Corporation")
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, ______ shares of common stock of the Corporation (the "Warrant
Securities"), and requests that certificates for the Warrant Securities be
issued in the name of:
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(Please print or Type Name, Address and Social Security Number)
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and, if said number of shares of Warrant Securities shall not be all the Warrant
Securities purchasable hereunder, that a new Warrant Certificate for the balance
of the Warrant Securities purchasable under the within Warrant Certificate be
registered in the name of the undersigned Holder or his Assignee as below
indicated and delivered to the address stated below.
Dated:
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Name of Holder
or Assignee:
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(Please Print)
Address:
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Signature:
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Note: The above signature must correspond with the name as it appears upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, unless these Warrants have been assigned.
MigraTEC, Inc.
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
the right to purchase ______ shares of common stock represented by the within
Warrant Certificate unto, and requests that a certificate for such Warrant be
issued in the name of:
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(Please print or Type Name, Address and Social Security Number)
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The undersigned hereby irrevocably constitutes and appoints
________________________ Attorney to transfer said Warrant on the books of the
Corporation, with full power of substitution in the premises and, if said number
of shares of common stock shall not be all of the common stock purchasable under
the within Warrant Certificate, that a new Warrant Certificate for the balance
of the common stock purchasable under the within Warrant Certificate be
registered in the name of the undersigned Holder and delivered to the Holder's
address as then set forth on the Corporation's books.
Dated:
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Signature of Registered Holder
Note: The above signature must correspond with the name as it appears upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.