EXHIBIT 4.2.1
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, OR
TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (II) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY,
REGISTRATION UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR TRANSFER.
STOCK PURCHASE WARRANT
TO PURCHASE 100,000 SHARES OF COMMON STOCK OF
TRADEQWEST, INC.
THIS WARRANT to purchase common stock, par value $.001 per share (the
"Common Stock") of TRADEQWEST, INC., a Delaware corporation (the "Company") is
issued the 15th day of August, 2001 by the Company to Rockann Enterprises, Inc.
(A California Corp.) 00000 Xxxxxxxx Xxxx., Xxxxx 0000, Xxx Xxxxxxx, XX, 00000,
or any subsequent assignee or transferee hereinafter referred to collectively as
"Holder" or "Holders").
1. Issuance of Warrant. The Company hereby grants to the Holder the right to
purchase One Hundred Thousand (100,000) shares of the Common Stock, upon the
surrender hereof, at the Exercise Price (as defined in Section 3 below) per
share. The shares of Common Stock issuable upon exercise of this Warrant are
hereinafter referred to as the "Warrant Shares." The number of Warrant Shares
and the Exercise Price are subject to adjustment as provided in Section 9 below.
2. Term. Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable in whole from the date hereof until 5:00 p.m. Eastern Time
on August 15, 2006 (the "Expiration Date") and shall be void thereafter,
provided that the provisions of Section 6 hereof shall survive in accordance
with their terms.
3. Price. The purchase price per share for which the Warrant Shares may be
purchased pursuant to the terms of this Warrant shall be the lesser of $2.10 per
share, or 52.75% of the price quoted for the Company's stock on the date of
exercise or if the Common Stock is not listed on any nationally recognized
exchange, the last bid price for the Common Stock on the date of exercise.
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4. Exercise.
(a) From the date hereof until the Expiration Date, this Warrant may be
exercised, and the Holder may purchase from the Company, the number of shares of
Common Stock set forth in Section 1 above held by the Holder that the Holder
elects to exercise at such time.
(b) The Holder may exercise this Warrant as to part or all of the Warrant
Shares by surrender of this Warrant and the Notice of Exercise attached hereto
as Exhibit A, duly completed and executed on behalf of the Holder, at the
principal office of the Company, or at such other address as the Company shall
designate in a written notice to the Holder hereof, together with a certified
check payable to the Company for the aggregate Exercise Price of the Warrant
Shares so purchased.
(c) 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 be a Saturday, Sunday or a legal holiday, then such action may be taken or
such right may be exercised on the next succeeding day not a Saturday, Sunday or
legal holiday.
5. Covenants and Conditions. The above provisions are subject to the following:
(a) The Warrant Holder shall continue as a member of the Advisory Board for
TradeQwest, Inc.
(b) Neither this Warrant nor the Warrant Shares have been registered under
the Securities Act or any state securities laws ("Blue Sky Laws"). This Warrant
and the Warrant have been acquired for investment purposes only and not with a
view to distribution or resale and may not be pledged, hypothecated, sold, made
subject to a security interest, or otherwise transferred without (i) an
effective registration statement for such Warrant under the Securities Act and
such applicable Blue Sky Laws, or (ii) an opinion of counsel reasonably
satisfactory to the Company that registration is not required under the
Securities Act or under any applicable Blue Sky Laws. Transfer of the Warrant
Shares issued upon the exercise of this Warrant shall be restricted in the same
manner and to the same extent as the Warrant, and the certificates representing
such warrant Shares shall bear substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF l933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (i) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE ACT OR SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
The Holder agrees to execute such other documents and
instruments as counsel to the Company reasonably deems necessary to effect the
compliance of the issuance of this Warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws,
including compliance with applicable exemptions from the registration
requirements of such laws.
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(c) The Company covenants and agrees that all Warrant Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment therefor,
be legally and validly issued and outstanding, fully paid and nonassessable. The
Company shall at all times reserve and keep available for issuance upon the
exercise of this Warrant such number of authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of this Warrant.
6. Registration Rights.
(a) The Company and the Holder agree that if at any time the Company shall
propose to file a registration statement with respect to any of its Common Stock
on a form suitable for an offering by a selling shareholder, it will give notice
in writing to such effect to the Holder at least thirty (30) days prior to such
filing, and, at the written request of the Holder made within ten (10) days
after the receipt of such notice, will include therein at the Company's cost and
expense (including the fees and expenses of one counsel to such Holder, but
excluding underwriting discounts, commissions and filing fees attributable to
the Warrant Shares included therein) such of the Warrant Shares as such Holder
shall request; provided that if the offering being registered by the Company is
underwritten and if the representative of the underwriters determines that the
inclusion therein of the Warrant Shares requested to be included would
materially and adversely affect the sale of the securities to be sold by the
Company thereunder, then the Company shall be required to include in the
offering only that number of securities, including the Warrant Shares, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering.
(b) The Company's obligations under Section 6(a) above with respect to each
Holder of Warrant Shares are expressly conditioned upon such Holder's furnishing
to the Company in writing such information concerning such Holder and the terms
of such Holder's proposed offering as the Company shall reasonably request for
inclusion in the registration statement. If any registration statement including
any of the Warrant Shares is filed, then the Company shall indemnify each Holder
thereof (and each underwriter for such Holder and each person, if any, who
controls such underwriter within the meaning of the Securities Act) from any
loss, claim, damage or liability arising out of, based upon or in any way
relating to any untrue statement of a material fact contained in such
registration statement or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except for any such statement or omission based on information furnished in
writing by such Holder of the Warrant Shares expressly for use in connection
with such registration statement; and such Holder shall indemnify the Company
(and each of its officers and directors who has signed such registration
statement, each director, each person, if any, who controls the Company within
the meaning of the Securities Act, each underwriter for the Company and each
person, if any, who controls such underwriter within the meaning of the
Securities Act) and each other such Holder against any loss, claim, damage or
liability arising from any such statement or omission which was made in reliance
upon information furnished in writing to the Company by such Holder of the
Warrant Shares expressly for use in connection with such registration statement.
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7. Transfer of Warrant. Subject to the provisions of Section 5, this Warrant may
be transferred by presentation of the Warrant to the Company with written
instructions for such transfer and by the execution by such transferee of an
investment letter in a form reasonably satisfactory to the Company only (a) by
operation of law or by reason of the reorganization of the Holder or (b) upon
the written consent of the Company. Upon such permitted transfer, the transferee
shall be subject to the same restrictions on transferability as provided under
this Section 7. Upon such presentation for transfer and receipt of such
investment letter from such holder in connection with such permitted transfer,
the Company shall promptly execute and deliver a new Warrant or Warrants
substantially in the form hereof in the name of the assignee or assignees and in
the denominations specified in such instructions. The Company shall pay all
expenses in connection with the preparation, issuance and delivery of Warrants
under this Section
8. Warrant Holder Not Shareholder. This Warrant does not confer upon the Holder,
as such, any right whatsoever as a shareholder of the Company.
9. Adjustment Upon Changes in the Company Common Stock.
(a) If all or any portion of this Warrant shall be exercised subsequent to
any stock split, stock dividend recapitalization, combination of shares of the
Company, or other similar event, occurring after the date hereof, then the
Holder exercising this Warrant shall receive, for the aggregate price paid upon
such exercise, the aggregate number and class of shares which such Holder would
have received if this Warrant had been exercised immediately prior to the record
date for such stock split, stock dividend, recapitalization, combination of
shares, or other similar event. If any adjustment under this Section 9(a) would
create a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and the number
of shares subject to this Warrant shall be the next higher number of shares,
rounding all fractions upward. Whenever there shall be an adjustment pursuant to
this Section 9(a), the Company shall forthwith notify the Holder or Holders of
this Warrant of such adjustment, setting forth in reasonable detail the event
requiring the adjustment and the method by which such adjustment was calculated.
(b) If all or any portion of this Warrant shall be exercised subsequent to
any merger, consolidation, exchange of shares, separation, reorganization or
liquidation of the Company, or other similar event, occurring after the date
hereof, as a result of which shares of Common Stock shall be changed into the
same or a different number of shares of the same or another class or classes of
securities of the Company or another entity, or the holders of Common Stock are
entitled to receive cash or other property, then the Holder exercising this
Warrant shall receive, for the aggregate price paid upon such exercise, the
aggregate number and class of shares, cash or other property which such Holder
would have received if this Warrant had been exercised immediately prior to such
merger, consolidation, exchange of shares, separation, reorganization or
liquidation, or other similar event. If any adjustment under this Section 9(b)
would create a fractional share of Common Stock or a right to acquire a
fractional share of Common Stock, such fractional share shall be disregarded and
the number of shares subject to this Warrant shall be the next higher number of
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shares, rounding all fractions upward. Whenever there shall be an adjustment
pursuant to this Section 9(b), the Company shall forthwith notify the Holder or
Holders of this Warrant of such adjustment, setting forth in reasonable detail
the event requiring the adjustment and the method by which such adjustment was
calculated.
10. Notice of Certain Events. In case:
(a) The Company shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive any dividend or other distribution, or
any right to subscribe for or purchase any shares of capital stock of any class,
or to receive any other rights; or
(b) Of any capital reorganization, any reclassification of shares of
capital stock of the Company (other than a subdivision or combination of
outstanding shares of Common Stock to which Section 9 applies), or any
consolidation or merger of the Company or the sale or transfer of all or
substantially all of the assets of the Company; or
(c) Of any voluntary dissolution, liquidation, or winding up of the
Company;
then the Company shall mail (at least thirty (30) days prior to the applicable
date referred to in subclause (x) or in subclause (y) below, as the case may
be), to the Holder at the address set forth in the Company's stock records, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution, or rights, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, or rights are to be determined, or (y) the date on which
such reclassification, capital reorganization, consolidation, merger, sale,
transfer dissolution, liquidation, or winding up is expected to become
effective, and, if applicable, the date as of which it is accepted that holders
of Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
capital reorganization, consolidation, merger, sale, transfer, dissolution,
liquidation, or winding up.
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IN WITNESS WHEREOF, TradeQwest, Inc. has caused this Warrant to be executed
by its duly authorized officer to be effective as of the first date written
above.
TRADEQWEST, INC.
By: /s/ Xxxxxx Xxxx
-----------------------
Xxxxxx Xxxx, President
Accepted:
By:
Name:
Title:
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EXHIBIT A
NOTICE OF EXERCISE
TO: TRADEQWEST, INC.
The undersigned, the Holder of the foregoing Warrant and pursuant to
the terms hereof, hereby elects to exercise rights represented by said Warrant
for, and to purchase thereunder, shares of the Company's Common Stock covered by
said Warrant, and tenders herewith payment of the purchase price in full for
such shares of $____________.
The undersigned hereby requests that certificates for such shares (or
any other securities or other property issuable upon such exercise) be issued in
the name of and delivered to the undersigned at the address set forth below.
Name
Date:
Signature
Address:
Please submit to:
Investor Relations
TradeQwest, Inc.
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
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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, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
---------------------------------------------------------------
whose address is
---------------------------------------------------------------.
---------------------------------------------------------------
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
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 an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
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