COMMON STOCK PURCHASE WARRANT ZEALOUS TRADING GROUP, INC.
EXHIBIT
10.10
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
| Warrant Shares: 5,000,000 |
Initial
Exercise Date: October 5, 2007
|
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value
received, ▇▇▇▇▇▇ Partners, LP, California limited partnership (the
“Holder”), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after
the
date hereof October 5, 2007 (the “Initial Exercise Date”) and on or prior
to the close of business on the five year anniversary of the Initial Exercise
Date (the “Termination Date”) but not thereafter, to subscribe for and
purchase from Zealous Trading Group, Inc., a Nevada corporation (the
“Company”), 5,000,000 shares (the “Warrant Shares”) of common
stock, par value $.001 per share, of the Company (the “Common
Stock”). The purchase price of one share of Common Stock under
this Warrant shall be equal to the Exercise Price, as defined in Section
2(b).
Section
2.
Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after
the
Initial Exercise Date and on or before the Termination Date by delivery to
the
Company of a duly executed facsimile copy of the Notice of Exercise Form
annexed hereto (or such other office or agency of the Company as it
may designate by notice in writing to the registered Holder at the address
of
such Holder appearing on the books of the Company); and, within 3 Business
Days
(as defined below) of the date said Notice of Exercise is delivered to the
Company and the Company shall have received payment of the aggregate Exercise
Price of the shares thereby purchased by wire transfer or cashier’s check drawn
on a United States bank. Partial exercises of this Warrant resulting
in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of
Warrant Shares purchased. The Company shall maintain records showing
the number of Warrant Shares purchased and the date of such
purchases. For the purposes of this Warrant “Business Day”
means any day, except Saturday, Sunday or any holiday observed by the
New York
Stock Exchange. Notwithstanding any provision to the contrary in this
Warrant, this Warrant may not be exercised until an amendment to the Articles
of
Incorporation of the Company increasing the authorized shares of the Company’s
Common Stock to 1,500,000,000 shares is approved by a majority of the Company’s
shareholders (the “Authorized Share Amendment”) and is filed with the Secretary
of State of the State of Nevada and becomes effective (the “Amendment Effective
Date”). The Maker agrees to use its reasonable commercial efforts to file a
Schedule 14 C with the Securities Exchange Commission with respect to the
Authorized Share Amendment by no later than February 15, 2008.
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b) Exercise
Price. The exercise price per share of the Common Stock under
this Warrant shall be $0.025, subject to being adjusted down if
the exercise price is less in the current offering (the “Exercise
Price”).
c) Cashless
Exercise. In lieu of exercising this Warrant by payment of cash,
this Warrant may also be exercised at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing [(A-B)
(X)]
by (A), where:
(A)
=
VWAP (as defined below) on the Business Day immediately preceding the date
of
such election;
(B)
= the Exercise Price of this Warrant, as adjusted; and
(X)
= the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
For
purposes of this Warrant, “VWAP” means, for any date, the price determined by
the first of the following clauses that applies: (a) if the Common Stock is
then
listed or quoted on a Trading Market (as defined below), the daily volume
weighted average price of the Common Stock for the ten (10) trading days prior
to such date (or the nearest preceding date) on the Trading Market on which
the
Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a
Trading Day from 9:30 a.m. New York City time to 4:02 p.m. New York City time);
(b) if the OTC Bulletin Board is not a Trading Market, the volume
weighted average price of the Common Stock for the ten (10) trading days prior
to such date (or the nearest preceding date) on the OTC Bulletin Board; (c)
if
the Common Stock is not then listed or quoted on the OTC Bulletin Board and
if
prices for the Common Stock are then reported in the “Pink Sheets” published by
Pink Sheets, LLC (or a similar organization or agency succeeding to its
functions of reporting prices), the average bid price per share of the Common
Stock so reported for the twenty (20) trading days prior to such date; or (d)
in
all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Purchaser and
reasonably acceptable to the Company, the fees and expenses of which shall
be
paid by the Company. For purposes of this Warrant, “Trading Market” means the
following markets or exchanges on which the Common Stock is listed or quoted
for
trading on the date in question: the American Stock Exchange, the Nasdaq Capital
Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New
York
Stock Exchange or the OTC Bulletin Board.
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d) Mechanics
of Exercise.
i. Authorization
of Warrant Shares. The Company covenants that all Warrant Shares
that may be issued upon the exercise of the purchase rights represented by
this
Warrant will after the Amendment Effective Date, upon exercise of the purchase
rights represented by this Warrant, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges created by
the
Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
ii. Delivery
of Certificates Upon Exercise. Certificates for shares purchased
hereunder shall be transmitted by the Company to the Holder by physical delivery
to the address specified by the Holder in the Notice of Exercise within 10
Business Days from the delivery to the Company of the Notice of Exercise Form,
surrender of this Warrant (if required) and payment of the aggregate Exercise
Price as set forth above (“Warrant Share Delivery
Date”). This Warrant shall be deemed to have been exercised
on the date the Exercise Price is received by the Company. The
Warrant Shares shall be deemed to have been issued, and the Holder or any other
person so designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price (or by cashless
exercise) and all taxes required to be paid by the Holder, if any, pursuant
to
Section 2(d)(vi) prior to the issuance of such shares, have been
paid.
iii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been
exercised in part, the Company shall, at the request of a Holder and upon
surrender of this Warrant certificate, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to the Holder
a
new Warrant evidencing the rights of the Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
iv. No
Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise
be entitled to purchase upon such exercise, the Company shall at its election,
either pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price or round up to the
next
whole share.
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v. Charges,
Taxes and Expenses. Issuance of certificates for Warrant Shares
shall be made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such certificate, all
of
which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event
certificates for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied
by the Assignment Form attached hereto duly executed by the Holder; and the
Company may require, as a condition thereto, the payment of a sum sufficient
to
reimburse it for any transfer tax incidental thereto.
vi. Closing
of Books. The Company will not close its stockholder books or
records in any manner that prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
Section
3.
CertainAdjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is
outstanding: (A) pays a stock dividend or otherwise makes a distribution or
distributions on shares of its Common Stock or any other equity or equity
equivalent securities payable in shares of Common Stock (which, for avoidance
of
doubt, shall not include any shares of Common Stock issued by the Company upon
exercise of this Warrant), (B) subdivides outstanding shares of Common Stock
into a larger number of shares, (C) combines (including by way of reverse stock
split) outstanding shares of Common Stock into a smaller number of shares,
or
(D) issues by reclassification of shares of the Common Stock any shares of
capital stock of the Company, then in each case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number of shares
of
Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after
the
effective date in the case of a subdivision, combination or
re-classification.
b) Adjustment
for Reorganization, Consolidation, Merger.
(i) General. In
case at any time or from time to time, the Company shall (i) effect a
reorganization, (ii) consolidate with or merge into any other person, or (iii)
transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, the Holder, on the exercise hereof, as
provided in Section 1, at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Warrant Shares
issuable on such exercise prior to such consummation or such effective date,
the
stock and other securities and property (including cash) to which Holder would
have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such holder had so exercised this Warrant
immediately prior thereto, all subject to further adjustment thereafter as
provided in Section 3(a) hereof.
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(ii) Dissolution. In
the event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
other securities and property (including cash, where applicable) receivable
by
the holders of this Warrant after the effective date of such dissolution
pursuant to this Section 3 to a bank or trust company, as trustee for the holder
or holders of this Warrant.
(iii) Continuation
of
Terms. Upon any reorganization, consolidation, merger or transfer
(and any dissolution following any transfer) referred to in this Section 3,
this
Warrant shall continue in full force and effect and the terms hereof shall
be
applicable to the shares of stock and other securities and property receivable
on the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any
such
transfer, as the case may be, and shall be binding upon the issuer of any such
stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the terms
of
this Warrant.
c) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or
the
nearest 1/100th of a share, as the case may be. For purposes of this Section
3,
the number of shares of Common Stock deemed to be issued and outstanding as
of a
given date shall be the sum of the number of shares of Common Stock (excluding
treasury shares, if any) issued and outstanding.
d) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any
provision of this Section 3, the Company shall promptly mail to the Holder
a
notice setting forth the Exercise Price after such adjustment and setting forth
a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by ▇▇▇▇▇▇. If (A) the Company shall declare a dividend (or
any other distribution in whatever form) on the Common Stock; (B) the Company
shall declare a special nonrecurring cash dividend on or a redemption of the
Common Stock; (C) the Company shall authorize the granting to all holders of
the
Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights; (D) the approval of any
stockholders of the Company shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger to which
the
Company is a party, any sale or transfer of all or substantially all of the
assets of the Company, of any compulsory share exchange whereby the Common
Stock
is converted into other securities, cash or property; (E) the Company shall
authorize the voluntary or involuntary dissolution, liquidation or winding
up of
the affairs of the Company; then, in each case, the Company shall cause to
be
mailed to the Holder at its last address as it shall appear upon the Warrant
Register of the Company, at least 10 calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date
on
which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date
as
of which the holders of the Common Stock of record to be entitled to such
dividend, distributions, redemption, rights or warrants are to be determined
or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record
shall
be entitled to exchange their shares of the Common Stock for securities, cash
or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided that the failure to mail such notice
or any defect therein or in the mailing thereof shall not affect the validity
of
the corporate action required to be specified in such notice. The
Holder is entitled to exercise this Warrant during the 10-day period commencing
on the date of such notice to the effective date of the event triggering such
notice.
5
Section
4.
Transfer of Warrant.
a) Transferability. Subject
to compliance with any applicable securities laws, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are
transferable, in whole or in part, upon surrender of this Warrant at the
principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay
any
transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment, and
shall issue to the assignor a new Warrant evidencing the portion of this Warrant
not so assigned, and this Warrant shall promptly be cancelled. A
Warrant, if properly assigned, may be exercised by a new holder for the purchase
of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants
are
to be issued, signed by the Holder or its agent or attorney. Subject
to compliance with Section 4(a), as to any transfer which may be involved in
such division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
c) Warrant
Register. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant Register”), in
the name of the record Holder hereof from time to time. The Company
may deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection
with any transfer of this Warrant, the transfer of this Warrant shall not be
registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such transfer, that (i) the Holder or
transferee of this Warrant, as the case may be, furnish to the Company a written
opinion of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect
that
such transfer may be made without registration under the Securities Act and
under applicable state securities or blue sky laws, and (ii) the Holder or
transferee execute and deliver to the Company an investment letter in form
and
substance acceptable to the Company, and (iii) the transferee be an “accredited
investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8)
promulgated under the Securities Act or a “qualified institutional buyer” as
defined in Rule 144A(a) promulgated under the Securities Act.
6
Section
5.
Registration Rights.
a) Piggy-Back
Rights. If the Company shall, at any time, propose to register any of its
securities under the Securities Act for sale to the public, whether for its
own
account or for the account of other security holders or both (except with
respect to registration statements on Forms S-4 or S-8 or another form not
available for registering the Warrant Shares for sale to the public),
each such time it will give written notice to the Holder of its intention so
to
do. Upon the written request of the Holder, received by the Company within
20
calendar days after the giving of any such notice by the Company, to register
any of the Warrant Shares, the Company shall cause the Warrant Shares as to
which registration shall have been so requested to be included in the securities
to be covered by the registration statement proposed to be filed by the Company,
all to the extent required to permit the sale or other disposition by the Holder
of such Warrant Shares so registered.
b) Limitations.
In the event that any registration pursuant to Section 5(a) shall be, in whole
or in part, an underwritten public offering, the number of Warrant Shares to
be
included in such an underwriting may be reduced (pro rata among all
security-holders of the Company with contractual registration rights who are
requesting to include shares in such underwriting based upon the maximum number
of shares of Common Stock (on an as-converted basis) that such holders have
the
right to request registration of (regardless of whether registration of the
maximum number of shares is being requested by such holders)) if and to the
extent that the managing underwriter shall, in good faith, be of the opinion
that such inclusion would adversely affect the marketing of the securities
to be
sold by the Company therein. Moreover, the Company’s obligations pursuant to
Section 5(a) shall not apply to the first underwritten public offering of the
Company unless and to the extent that, in the opinion of the managing
underwriter of such underwritten public offering, the inclusion of the Warrant
Shares in such underwriting would benefit the marketing of the securities to
be
sold by the Company therein. Also, notwithstanding the foregoing provisions,
the
Company may withdraw any registration statement referred to in Section 5(a)
without thereby incurring any liability to the Holder.
Section
6. Miscellaneous.
c) No
Rights as Shareholder Until Exercise. This Warrant does not
entitle the Holder to any voting rights or other rights as a shareholder of
the
Company prior to the exercise hereof as set forth in Section
2(d)(ii).
d) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or destruction,
of
indemnity or security reasonably satisfactory to it (which, in the case of
the
Warrant, shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the Company
will make and deliver a new Warrant or stock certificate of like tenor and
dated
as of such cancellation, in lieu of such Warrant or stock
certificate.
7
e) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may
be
exercised on the next succeeding Business Day.
f) Authorized
Shares.
The
Company covenants that on the Amendment Effective Date and at all times
thereafter for the period the Warrant is outstanding, it will reserve from
its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants 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 the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of the Trading Market upon which the Common Stock may be
listed.
Except
and to the extent as waived or consented to by the Holder, the Company shall
not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this
Warrant, but will at all times in good faith assist in the carrying out of
all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase
in
par value, (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this
Warrant.
Before
taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
g) Jurisdiction.
The provisions of this Warrant and the rights of all parties mentioned herein
shall be governed by the laws of the State of New York and interpreted and
construed in accordance with such laws, without giving effect to the principles
of conflicts of laws, and any court of competent jurisdiction of the State
of
New York located in New York County shall have exclusive jurisdiction and venue
in any proceeding instituted hereunder and any objections to such jurisdiction
or venue are hereby waived by the Holder and the Company.
8
h) Restrictions. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, will have restrictions upon resale imposed by state
and federal securities laws.
i) Nonwaiver
and Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of the Holder shall operate as a waiver
of such right or otherwise prejudice ▇▇▇▇▇▇’s rights, powers or remedies,
notwithstanding the fact that all rights hereunder terminate on the Termination
Date. If the Company willfully and knowingly fails to comply with any
provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to the Holder such amounts as shall be sufficient to
cover
any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of
its
rights, powers or remedies hereunder.
j) Notices. All
notices, requests, demands and other communications required or permitted
hereunder or by law shall be in writing and given to the parties at the
addresses listed below (or to such other address as shall at any time be
designated by any party in writing to the other parties): (a) by
certified U.S. mail, return receipt requested, postage prepaid; (b) by facsimile
transmission (provided confirmation of the receipt thereof is obtained); (c)
by
recognized overnight courier service (e.g., Federal Express); or (d) by
hand-delivery, to the Company: Zealous Trading Group, Inc.
Post
Office Box 30010 Las Vegas, Nevada Zip 89173-0010 Att: Chief Executive
Officer, with a copy (which shall not constitute notice) to: ▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Att: ▇▇▇▇▇▇ ▇▇▇▇▇▇, and
to the Holder at such address as may have been furnished to the Company in
writing by the Holder or, until any the Holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who
has
so furnished an address to the Company. All such notices shall be deemed
effective (a) when actually delivered or when sent by facsimile (upon electronic
confirmation of receipt), (b) three days after being deposited in the United
States mail, first class, postage prepaid, or (c) one day after being delivered
to a reputable overnight delivery service.
k) Limitation
of Liability. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
l) Remedies. The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Warrant and hereby agrees to waive and not
to
assert the defense in any action for specific performance that a remedy at
law
would be adequate.
m) Successors
and Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit
of
and be binding upon the successors of the Company and the successors and
permitted assigns of the Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder or holder of Warrant
Shares.
9
n) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
o) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
p) Headings. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date first above
indicated.
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|
a
Nevada Corporation
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title:
Chief Executive Officer
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10
NOTICE
OF EXERCISE
TO: [_______________________
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full),
and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[ ]
the cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in subsection 2(c), to exercise this Warrant with
respect to the maximum number of Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in subsection 2(c).
(3) Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered by physical delivery of a certificate
to:
_______________________________
_______________________________
_______________________________
(4) Accredited
Investor. The undersigned is an “accredited investor” as defined
in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE
OF HOLDER]
Name
of
Investing Entity:
_______________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
_________________________________________________
Name
of
Authorized Signatory:
___________________________________________________________________
Title
of
Authorized Signatory:
____________________________________________________________________
Date:
_______________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
____________________________________________________________.
____________________________________________________________
Dated: ______________,
_______
Holder’s
Signature: _________________________
Holder’s
Signature: _________________________
_________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.