INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED AS OF FEBRUARY 15, 2002
XXXXXX X. XXXXXX
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THIS WARRANT AND THE SHARES OF COMMON STOCK COVERED HEREBY (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973,
AS AMENDED ("GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED BY SECTION
9(m) (NOW CODIFIED AS O.C.G.A. SECTION 10-5-9(13)) THEREOF, AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE SECURITIES ACT OF 1933,
AS AMENDED ("FEDERAL ACT"). THE SECURITIES WILL BE ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY INNERSPACE CORPORATION (THE
"COMPANY") AS HAVING ANY INTEREST IN SUCH SECURITIES, IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
GEORGIA ACT, OR AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE COMPANY, THAT THE TRANSACTION BY WHICH SUCH SECURITIES WILL
BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE
GEORGIA ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT; AND (ii) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
FEDERAL ACT, AND ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
INNERSPACE CORPORATION
COMMON STOCK PURCHASE WARRANT
Warrant No. 2 No. of Shares - 29,600
This certifies that, for value received, Xxxxxx X. Xxxxxx, hereinafter
referred to as the registered holder or the "Optionee," or her successors and
assigns, is entitled, subject to the terms and conditions hereinafter set forth,
at or before 5:00 o'clock P.M., Eastern time, on February 15, 2006, but not
thereafter, to purchase 29,600 shares of $.001 par value Common Stock (the
"Common Stock") of INNERSPACE CORPORATION, a Delaware corporation (the
"Company"), such number of shares being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. The purchase price
payable upon the exercise of this Warrant shall be $1.00 per share, said amount
being hereinafter referred to as the "Warrant Price" and being subject to
adjustments upon the occurrence of the contingencies set forth in this Warrant.
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Warrant Price for the shares of
Common Stock thereby purchased, at the principal office of the Company, 000
Xxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other address
as the Company may designate by notice in writing to the registered holder
hereof, the registered holder of this Warrant shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. All
shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully-paid and non-assessable and free from all taxes,
liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
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1. Optional Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in any part from time to time, at or prior to 5:00 o'clock P.M.,
Eastern time, on February 15, 2006, but not thereafter, as to all or any
part of the number of whole shares of Common Stock then subject hereto.
Payment of the Warrant Price shall be made in cash. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new
Warrant of like tenor and date for the balance of the shares of Common
Stock purchasable hereunder. Upon any exercise of this Warrant, Optionee
may, in lieu of payment of the Warrant Price in cash, surrender this
Warrant (or any successor hereto or fraction hereof) (valued for such
purpose at the Fair Market Value of the underlying Common Stock for which
such Warrant is exercisable on the date of such exercise less the Warrant
Price then in effect) and apply all or a portion of the amount so
determined to the payment of the Warrant Price for the number of shares of
Common Stock being purchased.
2. Adjustment of Warrant Price and Number of Shares Purchasable Hereunder. In
case the Company shall at any time subdivide the outstanding shares of its
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately decreased, and in case the Company
shall at any time combine the outstanding shares of its Common Stock, the
Warrant Price in effect shall immediately prior to such combination be
proportionately increased, effective from and after the record date of such
subdivision or combination, as the case may be.
3. Notice of Adjustments. Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of this Warrant, then and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the registered holder of this Warrant at the address of such holder as
shown on the books of the Company, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation of each. The holder of the Warrant shall
have 10 days in which to review the proposed adjustment and to object to
the proposed adjustment by notifying the Company in writing of such
objection, setting forth in reasonable detail the reasons for such
objection. If the holder fails to object to the proposed adjustment during
such 10-day period the proposed adjustment shall become final. If the
holder objects to the proposed adjustment then the Company and the holder
shall attempt to reconcile their differences and if unable to do so such
adjustment shall be determined by the Company's independent accountants
whose determination shall be final.
4. Notice of Exercise of Option. This Option may be exercised by the Optionee
by a written notice signed by the Optionee, and delivered or mailed to the
Company to the attention of the President. The notice shall specify the
number of shares of Stock which the Optionee elects to purchase hereunder,
and be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to
the total Exercise Price applicable to such shares purchased hereunder, or
(iii) a certified or cashier's check accompanied by a certificate or
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certificates representing the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to such shares purchased hereunder. Upon receipt of an such
notice and accompanying payment, the Company agrees to issue to the
Optionee stock certificates for the number of shares specified in such
notice registered in the name of the Optionee.
5. Charges, Taxes and Expenses. The issuance of certificates for shares of
Common Stock upon any exercise of this Warrant shall be made without charge
to the holder hereof for any tax or other expense in respect to the
issuance of such certificates, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of,
or in such name or names as may be directed by, the holder of this Warrant;
provided, however, that in the event that certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by
an instrument of transfer in form satisfactory to the Company, duly
executed by the holder hereof in person or by an attorney duly authorized
in writing.
6. Certain Obligations of the Company. The Company will not, by amendment of
its Certificate of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other voluntary act or
deed, avoid or seek to avoid the performance or observance of any of the
covenants, stipulations or conditions to be performed or observed by the
Company, but will at all times in good faith assist, insofar as it is able,
in the carrying out of all provisions of this Warrant and in the taking of
all other action which may be necessary in order to protect the rights of
the holder of this Warrant against dilution. Without limiting the
generality of the foregoing, the Company agrees that it will not establish
or increase the par value of the shares of any Common Stock which are at
the time issuable upon exercise of this Warrant above the then prevailing
Warrant Price hereunder and that, before taking any action which would
cause an adjustment reducing the Warrant Price hereunder below the then par
value, if any, of the shares of any Common Stock issuable upon exercise
hereof, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully-paid and non-assessable shares of such Common Stock
at the Warrant Price as so adjusted.
7. Miscellaneous.
a. The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of Common Stock to permit the exercise
hereof in full and a sufficient number of shares of Common Stock to
permit the conversion of all such shares of Common Stock.
b. The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the holder
or holders hereof and of the Common Stock issued or issuable on the
exercise hereof.
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c. No holder of this Warrant, as such, shall be entitled under this
Warrant to vote or receive dividends (except as provided in paragraph
2 hereof) or be deemed to be a shareholder of the Company for any
purpose.
d. This Warrant may be divided into separate Warrants covering one share
of the Common Stock or any whole multiple thereof, for the total
number of shares of Common Stock then subject to this Warrant at any
time, or from time to time, upon the request of the registered holder
of this Warrant and the surrender of the same to the Company for such
purpose. Such subdivided Warrants shall be issued promptly by the
Company following any such request and shall be of the same form and
tenor as this Warrant, except for any requested change in the name of
the registered holder stated herein.
e. Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person
or by duly authorized attorney on the books of the Company upon
surrender of this Warrant, properly endorsed, to the Company. The
Company may deem and treat the registered holder of this Warrant at
any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary.
f. By acceptance of this Warrant the registered holder represents and
warrants to the Company that such holder is acquiring this Warrant and
will acquire any shares of Common Stock issued upon the exercise of
this Warrant for the holder's own account with the intent of holding
such warrant or shares for investment and without the intent of
participating directly or indirectly in a distribution of the same.
Any certificates for Common Stock issued upon the exercise of this
Warrant shall bear a legend similar to the legend appearing on the
first page of this Warrant.
g. The term "Fair Market Value" shall mean the average Closing Sales
Price of the Company's Common Stock for the five (5) trading days
immediately preceding the date of notice or exercise which relates to
said determination of Fair Market Value.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers and its corporation seal to be affixed hereto.
Dated: February 15, 2002
INNERSPACE CORPORATION
By:/s/ Xxxxxx X. Xxxxx
Chief Executive Officer
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ASSIGNMENT
(To be Executed by the Registered Holder to effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers
unto the foregoing Warrant and the rights represented thereto to purchase shares
of Common Stock of INNERSPACE CORPORATION, in accordance with the terms and
conditions thereof, and does hereby irrevocably constitute and appoint
__________________________________________ Attorney to transfer the said Warrant
on the books of the Company, with full power of substitution.
___________________________________ By __________________________
Signature
___________________________________
___________________________________
___________________________________
Address
Dated:_____________________________
In the presence of:
___________________________________
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights to Purchase
Stock evidenced by the foregoing Warrant)
TO: INNERSPACE CORPORATION
The undersigned hereby exercises the right to purchase _______ shares of
Common Stock covered by the attached Warrant in accordance with the terms and
conditions thereof, and herewith makes payment of the Warrant Price of such
shares in full.
The undersigned represents and warrants to you that the undersigned is
acquiring such shares for the undersigned's own account with the intent of
holding such shares for investment and without the intent of participating
directly or indirectly in a distribution of such shares.
________________________________
By: ________________________________
Signature
________________________________
________________________________
Address
Dated: _________________.
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