Warrant Number: __
Exhibit
10.2
Warrant
Number: __
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS, AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD,
ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS.
Void
after 5:00 p.m. Central Standard Time on __________.
WARRANT
TO PURCHASE COMMON STOCK OF
FOR
VALUE
RECEIVED, Boo Koo Holdings, Inc., a Delaware corporation (the "Company"), hereby
certifies that ___________,
or his
permitted assignees, is entitled to purchase from the Company the number of
fully paid and non-assessable shares of the Common Stock, $0.01 par value,
of
the Company as determined in the next paragraph at the Per Share Warrant Price
of $0.01 per share prior to 5:00 p.m. Central Standard Time on _________, as
adjusted herein pursuant to Section 3. (Hereinafter, (i) said Common stock,
together with any other equity securities which may be issued by the Company
with respect thereto or in substitution therefor, is referred to as the "Common
Stock," (ii) the shares of Common Stock purchasable hereunder are referred
to as
the "Warrant Shares," (iii) the aggregate purchase price payable hereunder
for
the Warrant shares is referred to as the "Aggregate Warrant Price," (iv) the
price payable hereunder for each of the Warrant Shares is referred to as the
"Per Share Warrant Price," (v) this Warrant, and all warrants hereafter issued
in exchange or substitution for this Warrant for this Warrant are referred
to as
the "Warrant" and (vi) the holder of this Warrant is referred to as the
"Holder." The Per Share Warrant Price is subject to adjustment as hereinafter
provided, and in the event of any such adjustment, the number of Warrant Shares
shall be adjusted by dividing the Aggregate Warrant Price by the Per Share
Price
in effect immediately after such adjustment.
The
number of Warrant Shares purchasable hereunder (subject to adjustment as set
forth herein) shall equal ________ shares of Common Stock, adjusted as of the
date of such purchase, as provided for in numbered paragraph 3
below.
1. Exercise
of Warrant.
(a)
This
Warrant may be exercised by the Holder by the surrender of this Warrant (with
the subscription form at the end hereof duly executed) at the address set forth
in Subsection 9(a) hereof, together with proper payment of the Aggregate Warrant
Price. Payment for Warrant Shares shall be made by certified or official bank
check payable to the order of the Company. Upon such surrender of this Warrant,
the Company will issue a certificate or certificates in the name of the Holder
for the largest number of whole shares of the Common Stock to which the Holder
shall be entitled and in lieu of any fractional share of the Common Stock to
which the Holder shall be entitled, cash equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
of the Company shall determine).
(b) No
Warrant granted herein shall be exercisable after _________
2. Reservation
of Warrant Shares.
The
Company agrees that, prior to the expiration of this Warrant, it will at all
times have authorized and in reserve, and will keep available, solely for
issuance or delivery upon the exercise of this Warrant, the shares of Common
Stock as from time to time shall be receivable upon the exercise of this
Warrant.
3. Anti-Dilution
Provisions.
(a) If,
at
any time or from time to time after the date of this Warrant, the Company shall
distribute to the holders of the Common Stock (i) securities, other than shares
of the Common Stock, or (ii) property, other than cash, without payment
therefor, with respect to the Common Stock, then, and in such case, the Holder,
upon the exercise of this Warrant, shall be entitled to receive the securities
and properties which the Holder would hold on the date of such exercise if,
on
the date of this Warrant, the Holder had been the holder of record of the number
of shares of the Common Stock subscribed for upon such exercise and, during
the
period from the date of this Warrant to and including the date of such exercise,
had retained such shares and the securities and properties (as described in
(i)
and (ii) above) receivable by the Holder during such period. Notice of each
such
distribution shall be mailed to the Holder within 30 days after the date of
any
such distribution.
(b) In
case
the Company shall hereafter (i) pay a dividend or make a distribution on its
capital stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, or (iv) issue by
reclassification of its Common Stock any shares of capital stock of the Company,
the Per Share Warrant Price in effect immediately prior to such action shall
be
adjusted so that if the Holder surrendered this Warrant for exercise immediately
thereafter the Holder would be entitled to receive the number of shares of
Common Stock or other capital stock of the Company which he would have owned
immediately following such action had such Warrant been exercised at that time.
An adjustment made pursuant to this subsection (b) shall become effective
immediately after the record date in the case of a dividend or distribution
and
shall become effective immediately after the effective date in the case of
a
subdivision, combination or reclassification.
(c) Whenever
the Per Share Warrant Price is adjusted as provided in this Section 3 and upon
modification of the rights of the Holder of this Warrant in accordance with
this
Section 3, the Company shall promptly prepare a certificate of an officer of
the
Company, setting forth the Per Share Warrant Price and the number of Warrant
Shares after such adjustment or modification, a brief statement of the facts
requiring such adjustment or modification, and the manner of computing the
same
and cause a copy of such certificate to be mailed to the Holder within 30 days
after the date of such adjustment.
(d) If
the
Board of Directors of the Company shall declare any dividend or other
distribution in cash with respect to the Common Stock, the Company shall mail
notice thereof to the Holder not less than 15 days prior to the record date
fixed for determining shareholder entitled to participate in such dividend
or
other distribution.
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4. Fully
Paid Stock; Taxes.
The
Company agrees that the shares of the Common Stock represented by each and
every
certificate for Warrant Shares delivered on the exercise of this Warrant shall,
at the time of such delivery, be validly issued and outstanding, fully paid
and
non-assessable, and not subject to preemptive rights and the Company will take
all such actions as may be necessary to assure that the par value or stated
value, if any, per share of the Common Stock is at all times equal to or less
than the then Per Share Warrant Price. The Company further covenants and agrees
that it will pay, when due and payable, all Federal and state stamp or similar
taxes that may be payable in respect to the issue of any Warrant Share of
certificate therefor.
5. Transfer.
(a) Securities
Laws.
This
Warrant has not been registered under the Securities Act of 1933, as amended
(the "Securities Act") or under any state securities laws and unless so
registered may not be transferred, sold, pledged, hypothecated or otherwise
deposed of unless an exemption from such registration is available. In the
event
the Holder desires to transfer this Warrant, the Holder must give the Company
prior written notice of such proposed transfer including the name and address
of
the proposed transferee. Such transfer may be made only upon receipt of the
Company of an opinion of counsel to the Holder, or other evidence, if reasonably
requested by the Company, to the effect that the proposed transfer will not
violate the provisions of the Securities Act, the Securities Exchange Act of
1934, as amended, or the rules and regulations promulgated under either such
act.
(b) Conditions
to Transfer.
Prior
to any proposed transfer referred to in subparagraph (a) above, and as a
condition thereto, if such transfer is not made pursuant to an effective
registration statement under the Securities Act, the Holder will, if requested
by the Company, deliver to the Company (i) an investment covenant signed by
the
proposed transferee, (ii) an agreement by such transferee to the impression
of
the restrictive investment legend set forth herein on the certificate or
certificates representing the securities acquired by such transferee, (iii)
an
agreement by such transferee that the Company may place a "stop transfer order"
with its transfer agent or registrar, and (iv) an agreement by the transferee
to
indemnify the Company to the same extent as set forth in the next succeeding
paragraph.
(c) Indemnity.
The
Holder acknowledges that the Holder understands the meaning and legal
consequences of this Section 5, and the Holder hereby agrees to indemnify and
hold harmless the Company, its representative and each officer and director
thereof from and against any and all loss, damage or liability (including all
attorney's fees and costs incurred in enforcing this indemnity provision) due
to
or arising out of (a) the inaccuracy of any representation or the breach of
any
warranty of the Holder contained in, or any other breach of this Warrant, (b)
any transfer of any of the Warrant or the Warrant Shares in violation of the
Securities Act, the Securities Exchange Act of 1934, as amended, or the rules
and regulations promulgated under either of such acts, (c) any transfer of
the
Warrant or any of the Warrant Shares not in accordance with this Warrant or
(d)
any untrue statement or omission to state any material fact in connection with
the investment representations or with respect to the facts and representations
supplied by the Holder to counsel to the Company upon which its opinion as
to a
proposed transfer shall have been based.
(d) Transfer.
Subject
to the restrictions contained herein, this Warrant and the Warrant Shares issued
may be transferred by the Holder in whole or in part at any time or from time
to
time upon surrender of this Warrant properly endorsed. Upon surrender of this
Warrant to the Company or at the office of its stock transfer agent, if any,
with assignment documentation duly executed and funds sufficient to pay any
transfer tax, and upon compliance with the foregoing provisions, the Company
shall, without charge, execute and deliver a new Warrant in the name of the
assignee named in such instrument of assignment, and this Warrant shall promptly
be canceled. Any assignment, transfer, pledge, hypothecation or other
disposition of this Warrant attempted contrary to the provisions of this
Warrant, or any levy of execution, attachment or other process attempted upon
the Warrant shall be null and void and without effect.
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(e) Legend
and Stop Transfer Order.
The
Company shall instruct its transfer agent to enter stop transfer orders with
respect to the shares of Common Stock issuable upon exercise of the Warrants,
and all certificates representing Warrant Shares shall bear on the face thereof
substantially the following legend:
"The
shares of common stock represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold, offered
for
sale, assigned, transferred or otherwise disposed of unless registered pursuant
to the provisions of that Act or an opinion of counsel to the Company is
obtained stating that such disposition is in compliance with an available
exemption from such registration."
6. Registration
Rights.
The
Company hereby agrees to use commercially reasonable efforts to provide
registration rights with regard to the Warrant Shares issuable to Holder and
its
affiliates upon exercise of this Warrant that are the same as the registration
rights provided to investors in the next round of equity financing.
7. Loss,
etc. of Warrant.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to
the
Company, if lost, stolen or destroyed, and upon surrender and cancellation
of
this Warrant, if mutilated, the Company shall execute and deliver to the Holder
a new Warrant of like date, tenor and denomination.
8. Warrant
Holder Not Shareholder.
No
holder
of this Warrant shall be entitled, as a Warrant holder, to vote or receive
dividends or be deemed the holder of the Warrant Shares or any other securities
of the Company which may at any time be issuable on the exercise hereof for
any
purpose, nor shall anything contained herein be construed to confer upon the
holder of this Warrant, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have
been
exercised and the Warrant Shares purchasable upon the exercise hereof shall
have
become deliverable, as provided herein.
9. Communication.
All
notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to
be
given upon receipt or, if earlier, (a) five (5) days after deposit with the
U.S.
Postal Service or other applicable postal service, if delivered by first
class
mail, postage prepaid,
(b) upon
delivery, if delivered by hand, (c) one business day after the business day
of
deposit with Federal Express or similar overnight courier, freight prepaid
or
(d) one business day after the business day of facsimile transmission, if
delivered by facsimile transmission with copy by first class mail, postage
prepaid, and shall be
addressed:
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(a) the
Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: President; and
(b) the
Holder at _____________________; or such other address as the Holder has
designated in writing to the Company.
10. Representations
and Warranties by the Holder.
The
Holder represents and warrants to the Company as follows:
(a) This
Warrant and the Warrant Shares issuable upon exercise thereof are being acquired
for his own account, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Act, other than to his affiliates or investors in a private transaction
in compliance with applicable securities laws. Upon exercise of this Warrant,
the Holder shall, if so requested by the Company, confirm in writing, in a
form
satisfactory to the Company, that the securities issuable upon exercise of
this
Warrant are being acquired for investment and not with a view toward
distribution or resale as set forth herein.
(b) The
Holder understands that the Warrant and the Warrant Shares have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that they must be held
by
the Holder indefinitely, and that the Holder must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof
is
registered under the Securities Act or is exempted from such registration.
(c) The
Holder has such knowledge and experience in financial and business matters
that
it is capable of evaluating the merits and risks of the purchase of this Warrant
and the Warrant Shares purchasable pursuant to the terms of this Warrant and
of
protecting his interests in connection therewith.
(d) The
Holder is able to bear the economic risk of the purchase of the Warrant Shares
pursuant to the terms of this Warrant.
(e) The
Holder is an “accredited investor” as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
11. Headings.
The
headings of this Warrant have been inserted as a matter of convenience and
shall
not affect the construction hereof.
12. Applicable
Law.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of Texas without regard to the conflict of laws principles
thereof.
13. Certification.
Each of
Company and Holder (by acceptance of this Warrant) hereby certifies to the
other
that (i) the Company or Holder as applicable, has been advised to seek the
advice of an attorney and an accountant in connection with this Warrant; and
(2)
the Company and Holder have had the opportunity to seek the advice of an
attorney and accountant of the Company’s or Holder’s, as applicable, choice in
connection with this Warrant.
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[Remainder
of Page Left Intentionally Blank]
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IN
WITNESS WHEREOF, Boo Koo Holdings, Inc. has caused this Warrant to be signed
by
its duly authorized officer as of this _____ day of ________, 2008.
By:
___________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
COO/CFO
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SUBSCRIPTION
The
undersigned, ________________________________ pursuant to the provisions of
the
foregoing Warrant agrees to subscribe for the purchase of ______________ shares
of the Common Stock of Boo Koo Holdings, Inc., a Delaware corporation, covered
by said Warrant, and makes payment therefor in full at the price per share
provided by said Warrant.
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Dated:
_____________________________
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Signature:________________
|
|
Address:
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ASSIGNMENT
FOR
VALUE
RECEIVED, ________________________________ hereby sells, assigns and transfers
unto _________________ the foregoing Warrant and all rights evidenced thereby,
and does irrevocably constitute and appoint __________________ an attorney,
to
transfer said Warrant on the books of Boo Koo Holdings, Inc., a Delaware
corporation.
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Dated:
_____________________________
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Signature:________________
|
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Address:
|
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PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, ___________________________ hereby sells, assigns and transfer unto
________________________ the right to purchase _____________ shares of the
Common Stock of Boo Koo Holdings, Inc., a Delaware corporation, by the foregoing
Warrant, and a proportionate part of said Warrant and the rights evidenced
hereby, and does irrevocably constitute and appoint
______________________________, an attorney, to transfer that part of said
Warrant on the books of Boo Koo Holdings, Inc.
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Dated:
_____________________________
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Signature:________________
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|
Address:
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