EXHIBIT 4.8
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR APPLICABLE STATE LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE ACT OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER AND IS
SATISFIED THAT THIS WARRANT AND THE UNDERLYING SECURITIES MAY BE TRANSFERRED
WITHOUT REGISTRATION UNDER THE ACT.
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▇▇▇▇▇▇▇.▇▇▇, INC.
REDEEMABLE COMMON STOCK PURCHASE WARRANT
VOID AFTER 5:00 P.M., EASTERN TIME
_________________ UNLESS EXTENDED
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇.▇▇▇, Inc., a Nevada corporation (the
"Company"), promises to issue in the name of, and sell and deliver to,
________________, (the "Holder"), or the Holder's registered transferee or
assignee (also the "Holder"), a certificate or certificates for an aggregate of
_____________ shares (the "Shares") of Common Stock, $0.001 par value per share
(the "Common Stock"), of the Company, at any time on or before the later of 5:00
p.m., Eastern Time, on __________________ unless extended, and in no event
beyond ______________ (the "Exercise Period"), upon payment therefore of $0.9875
per Share in lawful funds of the United States of America. The exercise period
of this Warrant shall be extended in the event the Company extends the final
maturity date of a certain Note issued by the Company to the Holder in the
amount of $________________ of even date herewith, said Note issued as a part of
this financing transaction. The Note expressly provides for an initial two (2)
year term and principal amount of $_________________- plus interest thereon
payable quarterly in cash from and after date at the rate of 9% per annum, or at
the option of the Company in free-trading stock (if available) calculated at the
rate of 18% per annum and based on the average closing price of the stock for
seven (7) days prior to the payment date; provided however, the Note may at the
option of the Company, be extended for an additional one year term with equal
monthly amortization at the rate of 110% of principal plus accrued interest at
the Note rate; or, the Company may at its option extend the term of the Note for
a total of two (2) additional years with equal monthly amortization at the rate
of 120% of principal plus accrued interest at the Note rate, such option to
extend the Note to be exercised by the Company in writing to the Holder at least
60 days prior to its original maturity date.
1. Exercise of the Warrant. In case the Holder of this Warrant shall
desire to exercise this Warrant in whole or in part, the Holder shall surrender
this Warrant, with the form of exercise notice on the last page hereof duly
executed by the Holder, to the Company, accompanied by payment of the Exercise
Price of $0.9875 per Warrant. This Warrant may be exercised in whole or in part
but not for fractional Shares. In case of the
exercise in part only, the Company will deliver to the Holder a new Warrant of
like tenor in the name of the Holder evidencing the right to purchase the number
of Shares as to which this Warrant has not been exercised.
2. Covenants of the Company. The Company hereby covenants and agrees
that prior to the expiration of this Warrant by exercise or by its terms:
(a) The Company shall at all times reserve and keep available,
out of its authorized and unissued share capital, solely for the purpose of
providing for the exercise, forthwith upon the request of the Holder of the
Warrants then outstanding and in effect, such number of shares of Common Stock,
as shall, from time to time, be sufficient for the exercise of the Warrants. The
Company shall, from time to time, in accordance with the laws of the State of
Nevada, increase the authorized amount of its share capital if at any time the
number of shares of Common Stock remaining unissued and unreserved for other
purposes shall not be sufficient to permit the exercise of the Warrants then
outstanding and in effect.
(b) The Company covenants and agrees that all shares that may
be issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued, fully paid and non-assessable, and free from all
taxes, liens and charges with respect to the issue thereof.
3. Loss, Theft, Destruction or Mutilation. In case this Warrant shall
become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or in lieu of and in
substitution for such warrant so destroyed, lost, or stolen, upon the Holder of
such Warrant filing with the Company such evidence satisfactory to it that such
Warrant has been so mutilated, defaced, destroyed, lost or stolen and of the
ownership thereof by the Holder; provided, however, that the Company shall be
entitled, as a condition to the execution and delivery of such new Warrant, to
demand indemnity satisfactory to it and payment of expenses and charges incurred
in connection with the delivery of such new Warrant, and may demand a bond from
the Holder. Any Warrant so surrendered to the Company shall be canceled.
4. Record Owner. At the time of the surrender of this Warrant, together
with the form of subscription properly executed and payment of the Exercise
Price, the person exercising this Warrant shall be deemed to be the Holder of
record of the Common Stock deliverable upon such exercise, in whole or in part,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such securities shall not then be
actually delivered to such person.
5. Mailing of Notices, etc. All notices and other communications from
the Company to the Holder of this Warrant shall be mailed by first-class
registered or certified mail, return receipt requested, potage prepaid, to the
Holder at the address set forth in the
records of the Company, or to such other address furnished to the Company in
writing from time to time by the Holder of this Warrant.
6. Registration Under the Securities Act of 1933, as amended. Neither
this Warrant nor the Shares underlying it have been registered under the
Securities Act of 1933, as amended (the "Act"). Unless and until registered
under the Act, this Warrant and all replacement Warrants shall bear the
following legend:
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR APPLICABLE STATE LAW AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE ACT
AND ANY APPLICABLE STATE ACT OR UNLESS THE COMPANY RECEIVES AN OPINION
FROM COUNSEL FOR THE HOLDER AND IS SATISFIED THAT THIS WARRANT AND THE
UNDERLING SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION UNDER THE
ACT.
The Shares issuable upon exercise of this Warrant shall be Rule 144
restricted shares (the "Restricted Securities"). After issuance of the Shares,
Company agrees to use its best efforts to assist Holder in registering the
Shares or to register the Shares under the Act subject to the rules,
regulations, and other provisions of said Act.
7. Piggyback Registration.
(a) At any time that the Company proposes to file a Company
registration statement on Form S-1 or other appropriate registration form
(excluding Form 10-SB) under the Act (the "Registrations Statement"), for its
own account, the Company shall give the Holder written notice of its intention
to do so and of the intended method of sale (the "Registration Notice") within a
reasonable time prior to the anticipated filing date of the Company's
Registration Statement effecting such Company registration. Holder may request
inclusion of any Restricted Securities in such Registration Statement by
delivering to the Company, within ten (10) Business Days after receipt of the
Registration Notice, a written notice (the "Piggyback Notice") stating the
number of Restricted Securities proposed to be included and that such shares are
to be included in any underwriting only on the same terms and conditions as the
shares of Common Stock otherwise being sold through underwriters under such
Company Registration Statement. The Company shall use its best efforts to cause
all Restricted Securities specified in the Piggyback Notice to be included in
the Company Registration Statement and any related offering, all to the extent
requisite to permit the sale by the Holder of its Restricted Securities in
accordance with the method of sale applicable to the other shares of Common
Stock included in such Company Registration Statement; provided, however, that
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the Company Registration Statement
filed in connection with such registration, the Company shall determine for any
reason not to register or to delay registration of Holder's Restricted
Securities, the Company may, at its election, give written notice of such
determination to Holder and, thereupon:
(i) in the case of a determination not to register, shall be relieved
of its obligation to register Holder's Restricted Securities in
connection with such registration, and
(ii) in the case of a delay in registering, shall be permitted to
delay registering Holder's Restricted Securities for the same
period as the delay in registering such other securities.
(b) The Company's obligation to include Restricted Securities
in a Company's Registration Statement pursuant to Section 7(a) shall be subject
to the following limitations:
(i) The Company may elect, at its sole option and for any reason, not
to register Holder's Restricted Shares, provided however, that
this right is limited to one (1) time and relative to one (1)
particular Company Registration Statement.
(ii) The Company shall not be obligated to include any Restricted
Securities in a registration statement filed on Form ▇-▇, ▇▇▇▇
▇-▇ or such other similar successor forms then in effect under
the Securities Act.
(iii)If a Company Registration Statement involves an underwritten
offering and the managing underwriter advises the Company in
writing that in its opinion, the number of securities requested
to be included in such Company Registration Statement exceeds the
number which can be sold in such offering without adversely
affecting the offering, the Company shall include in such Company
Registration Statement the number of such securities which the
Company is so advised can be sold in such offering without
adversely affecting the offering, determined as follows:
(A) first, the securities proposed by the Company to be sold for
it own account, and
(B) second, any Restricted Securities requested to be included
in such registration and any other securities of the Company
in accordance with the priorities, if and then existing
among the holders of such securities pro rata among the
holders thereof requesting such registration on the basis of
the number of shares of such securities requested to be
included by such holders.
(iv) The Company shall not be obligated to include Restricted
Securities in more than one (1) Company Registration Statement.
(c) To the extent Holder's Restricted Securities are intended
to be included in a Company Registration Statement, Holder may include any of
its Restricted Securities in such Company Registration Statement pursuant to
this Agreement only if Holder furnishes to the Company in writing, within ten
(10) business days after receipt of a written request therefor, such information
specified in Item 507 of Regulation S-K under the Act or such other information
as the Company may reasonably request for use in connection
with the Company Registration Statement or Prospectus or preliminary Prospectus
included therein and in any application to the NASD. Holder as to which the
Company Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make all
information previously furnished to the Company by Holder not materially
misleading.
8. Antidilution Provision. The Exercise Price in effect from time to
time shall be, subject to adjustment in accordance with the provisions of this
Section 8.
(a) Adjustments for Stock Splits and Combinations. If the
Company shall at any time or from time to time after the date hereof, effect a
stock split of the outstanding Common Stock, the applicable Exercise Price in
effect immediately prior to the stock split shall be proportionately decreased.
If the Company shall at any time or from time to time after the date hereof,
combine the outstanding shares of Common Stock, the applicable Exercise Price in
effect immediately prior to the combination shall be proportionately increased.
Any adjustments under this Section 8(a) shall be effective at the close of
business on the date the stock split or combination occurs.
(b) Adjustments for Certain Dividends and Distributions. If
the Company shall at any time or from time to time after the date hereof, make
or issue or set a record date for the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in shares of Common
Stock, then, and in each event, the applicable Exercise Price in effect
immediately prior to such event shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, by multiplying, as applicable, the
applicable Exercise Price then in effect by a fraction;
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date;
and
(ii) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date
plus the number of shares of Common Stock issuable in payment of
such dividend or distribution.
(c) Adjustment for Other Dividends and Distributions. If the
Company shall at any time or from time to time after the date hereof, make or
issue or set a record date for the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in other than
shares of Common Stock, then, and in each event, an appropriate revision to the
Exercise Price shall be made and provision shall be made (by adjustments of the
Exercise Price or otherwise) so that the holder of this Note shall receive upon
conversions thereof, in addition to the number of shares of Common Stock
receivable thereon, the number of securities of the Company which they would
have received had this Note been converted into Common Stock on the date of such
event and had thereafter, during the period from the date of such event to and
including the date hereof, retained such securities (together with any
distributions payable thereon during such period), giving application to all
adjustments called for during such period under this Section 8(c) with respect
to the rights of the holders of the Warrant.
(d) Adjustments for Reclassification, Exchange or
Substitution. If the Common Stock issuable upon conversion of this Warrant at
any time or from time to time after the date hereof shall be changed into the
same or different number of shares of any class or classes of stock, whether by
reclassification, exchange, substitution or otherwise (other than by way of a
stock split or combination of shares or stock dividends provided for in Sections
8(a), (b) and (c), or a reorganization, merger, consolidation, or sale of assets
provided for in Section 8(e), then, and in each event, an appropriate revision
to the Exercise Price shall by made and provisions shall be made (by adjustments
of the Exercise Price of otherwise) so that the holder of this Warrant shall
have the right thereafter to convert such Warrant into the kind and amount of
shares of stock and other securities receivable upon reclassification, exchange,
substitution or other change, by holders of the number of shares of Common Stock
into which such Warrant might have been converted immediately prior to such
reclassification, exchange, substitution or other change, all subject to further
adjustment as provided herein.
(e) Adjustments for Reorganization, Merger, Consolidation or
Sales of Assets. If at any time or from time to time after the date hereof there
shall be a capital reorganization of the Company (other than by way of a stock
split or combination of shares or stock dividends or distributions provided for
in Section 8(a), (b), and (c), or a reclassification, exchange or substitution
of shares provided for in Section 8(d), or a merger or consolidation of the
Company with or into another corporation, or the sale of all or substantially
all of the Company's properties or assets to any other person, then as a part of
such reorganization, merger, consolidation, or sale, an appropriate revision to
the Exercise Price shall be made and provision shall be made (by adjustments of
the Exercise Price or otherwise) so that the holder of this Warrant shall have
the right thereafter to convert this Warrant into the kind and amount of shares
of stock and other securities or property of the Company or any successor
corporation resulting from such reorganization, merger, consolidation, or sale,
to which a holder of Common Stock deliverable upon conversion of such shares
would have been entitled upon such reorganization, merger, consolidation, or
sale, to which a holder of Common Stock deliverable upon conversion of such
shares would have been entitled upon such reorganization, merger, consolidation,
or sale. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 8(e) with respect to the rights of
the holders of this Warrant after the reorganization, merger, consolidation, or
sale to the end that the provisions of this Section 8(e) (including any
adjustment in the applicable conversion ratio then in effect and the number of
shares of stock or other securities deliverable upon conversion of this Warrant)
shall be applied after that event in as nearly an equivalent manner as may be
practicable.
9. Laws of the State of Nevada. This Warrant shall be governed by,
interpreted under and construed in all respects in accordance with, the laws of
the State of Nevada, irrespective of the place of domicile or residence of any
party.
10. Entire Agreement and Modification. The Company and the Holder of
this Warrant hereby represent and warrant that this Warrant is intended to and
does contain and embody all of the understandings and agreements, both written
and oral, of the parties hereto with respect to the subject matter of this
Warrant, and that there exists no oral agreement or understanding, express or
implied, whereby the absolute, final and unconditional character and nature of
this Warrant shall be in any way invalidated, empowered or affected. A
modification or waiver of any of the terms, conditions or provisions of this
Warrant shall be effective only if made in writing and executed with the same
formality as this Warrant.
This Warrant will become wholly void and of no effect and the rights
evidenced hereby will terminate unless exercised in accordance with the terms
and provisions hereof at or before 5:00 p.m., Eastern Time, on the Expiration
Date.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, has
executed this Warrant this ________ day of ________, 1999.
▇▇▇▇▇▇▇.▇▇▇, Inc.
By: ______________________________
▇▇▇▇▇▇▇ ▇. Will, President
[FORM OF ASSIGNMENT]
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE WARRANT CERTIFICATE.)
FOR VALUE RECEIVED ______________________________________ HEREBY
SELLS, ASSIGNS AND TRANSFERS UNTO _______________________________________
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
THIS WARRANT CERTIFICATE, TOGETHER WITH ALL RIGHT, TITLE AND INTEREST THEREIN,
AND DOES HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
___________________________________, ATTORNEY, TO TRANSFER THE WITHIN WARRANT
CERTIFICATE ON THE BOOKS OF THE WITHIN-NAMED COMPANY, WITH FULL POWER OF
SUBSTITUTION.
DATED:
SIGNATURE:_________________________________
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME OF HOLDER AS SPECIFIED ON THE
FACE OF THE WARRANT CERTIFICATE)
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(INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
FORM OF EXERCISE
THE UNDERSIGNED HEREBY IRREVOCABLY ELECTS TO EXERCISE THE PURCHASE
RIGHTS REPRESENTED BY THIS WARRANT FOR, AND TO PURCHASE THEREUNDER,
_________________ SHARES OF COMMON STOCK, $0.001 PAR VALUE PER SHARE, OF
▇▇▇▇▇▇▇.▇▇▇, INC., AND HEREWITH MAKES PAYMENT OF $0.9875 PER SHARE, OR A TOTAL
OF $____________________ THEREFORE, AND REQUEST THAT SUCH SHARES BE ISSUED TO:
(PRINT NAME)
---------------------------------
(ADDRESS)
---------------------------------
(SOCIAL SECURITY NUMBER)
DATED:
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME
OF HOLDER AS SPECIFIED ON THE FACE OF THIS WARRANT)