EXHIBIT 6.4
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED, EXCEPT
IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT), AND ALL APPLICABLE STATE SECURITIES LAWS.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE ACT, OR UNDER THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH, OR
PURSUANT TO AN EXEMPTION FROM, THE REQUIREMENTS OF SUCH LAWS.
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR OTHERWISE
QUALIFIED FOR RESALE BY THE HOLDER UNDER APPLICABLE SECURITIES LAWS AND MAY
NOT BE SOLD OR TRANSFERRED EXCEPT AS PERMITTED BY APPLICABLE SECURITIES
LAWS INCLUDING (i) IN RELIANCE ON EXEMPTIONS FROM REGISTRATION OR
PROSPECTUS REQUIREMENTS OR (ii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR VALID PROSPECTUS.
THIS WARRANT IS, AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT WILL BE, ISSUED IN RELIANCE UPON THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 504 OF REGULATION D, PROMULGATED UNDER THE
ACT. RULE 504 HAS BEEN AMENDED BY THE U.S. SECURITIES AND EXCHANGE
COMMISSION EFFECTIVE APRIL 7, 1999, AND SHARES ISSUED UPON EXERCISE OF THIS
WARRANT SUBSEQUENT TO THAT DATE WILL BE SUBJECT TO THE AMENDED PROVISIONS
OF RULE 504 AND WILL BEAR A RESTRICTIVE LEGEND.
No. W-__ ________ SHARES
WARRANT TO PURCHASE
_______ SHARES OF COMMON STOCK
OF THE XXXXXX-YORK CORPORATION
(NOW KNOWN AS XXXXXXXXXXXXXXX.XXX, INC.)
This certifies that __________________ ("Warrant Holder") or assigns
--------------
permitted hereunder, is entitled to purchase from The Xxxxxx-York Corporation, a
Delaware corporation now known as XxxxxxxXxxxxxxx.xxx, Inc. (the "Company"), at
-------
any time on or prior to May 31, 1999 (the "Expiration Date"), the number of duly
---------------
authorized, fully paid and non-assessable shares of Common Stock, par value
$.001 per share, of the Company (the "Common Stock") stated above at the
------------
Exercise Price (as hereinafter defined). The Exercise Price and the number of
Warrant Shares (as hereinafter defined) that may be purchased on exercise of
this Warrant are subject to adjustment as provided in Article III.
This Warrant is hereby issued pursuant to and subject in all respects to
the terms and conditions set forth in the Subscription Agreement, dated on or
about February 18, 1999, executed by the Warrant Holder (the "Subscription
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meaning ascribed to such term in the Subscription Agreement.
ARTICLE I
DEFINITIONS
-----------
Section 1.01. As used herein, the following terms shall have the
------------
meanings ascribed to such terms:
"Business Day" means a day other than a Saturday, Sunday or other day
------------
on which banks in the State of Florida are authorized by law to remain closed.
"Exercise Price" means initially $0.30 per share of Common Stock, as
--------------
that price may be adjusted from time to time as provided in Article III.
"Form of Assignment" has the meaning specified in Section 5.02.
------------------
"Subscription Form" has the meaning specified in Section 2.02.
-----------------
"Warrant Holder" means the person or entity named on the first page
--------------
hereof or any Person in whose name this Warrant is registered on the books of
the Company.
"Warrants" means this Warrant and all warrants of like tenor issued
--------
pursuant to the Subscription Agreement.
"Warrant Shares" means the shares of Common Stock, or any other
--------------
securities deliverable upon exercise of the Warrants.
ARTICLE II
EXERCISE OF WARRANT
-------------------
Section 2.01. (a) This Warrant may be exercised, in whole or in part,
------------
by the Warrant Holder at any time during the period commencing on the date of
issuance of this Warrant until May 31, 1999. THIS WARRANT IS, AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT WILL BE, ISSUED IN RELIANCE
UPON THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 504 OF REGULATION D,
PROMULGATED UNDER THE ACT. RULE 504 HAS BEEN AMENDED BY THE U.S. SECURITIES AND
EXCHANGE COMMISSION EFFECTIVE APRIL 7, 1999, AND SHARES ISSUED UPON EXERCISE OF
THIS WARRANT SUBSEQUENT TO THAT DATE WILL BE SUBJECT TO THE AMENDED PROVISIONS
OF RULE 504 AND WILL BEAR A RESTRICTIVE LEGEND. IN ADDITION, THE COMPANY MAY
CALL THIS WARRANT SHOULD THE COMPANY'S COMMON STOCK TRADE AT OR ABOVE $5.00
REPORTED CLOSING BID OR TRADE PRICE FOR 10 CONSECUTIVE TRADING DAYS, UPON 15
DAYS' WRITTEN NOTICE TO THE WARRANT HOLDER OF THE COMPANY'S INTENTION TO DO SO,
IF THE WARRANT
-2-
HOLDER SHALL NOT HAVE EXERCISED THIS WARRANT PRIOR TO THE END OF SUCH 15-DAY
NOTICE PERIOD.
Section 2.02.
------------
(a) To exercise this Warrant in whole or in part, the Warrant Holder
must surrender this Warrant on or prior to the Expiration Date, with the
Subscription Form attached hereto as Exhibit B (the "Subscription Form") duly
--------- -----------------
executed, to the Company at its office specified in Section 6.02.
(b) When the Company receives this Warrant with the Subscription Form
duly executed and accompanied by payment of the full Exercise Price for the
Warrant Shares as to which this Warrant is being exercised and the transfer
agent's charge of $25.00, the Company will (provided that receipt occurs on or
prior to the Expiration Date), as promptly as practicable after receipt, issue
certificates, registered in the name of the Warrant Holder or such other names
as are designated by the Warrant Holder, representing the total number of
validly issued, fully paid and non-assessable shares of Common Stock as to which
this Warrant is being exercised, in such denominations as are requested by the
Warrant Holder, and the Company will deliver those certificates to the Warrant
Holder against payment by a certified or official bank check payable to the
order of the Company or by wire transfer of immediately available funds to the
account of the Company designated by it, in each case of an amount equal to the
Exercise Price for the Warrant Shares as to which this Warrant is being
exercised.
(c) If the Warrant Holder exercises this Warrant prior to the
Expiration Date with respect to fewer than all the Warrant Shares to which this
Warrant relates, the Company will execute a new Warrant for the balance of the
Warrant Shares that may be purchased upon exercise of this Warrant and deliver
that new Warrant to the Warrant Holder, together with the certificates for the
Warrant Shares described in Section 2.02(b).
(d) The Warrant Holder will pay all expenses and any transfer or
similar taxes which may be payable in respect of the issuance of Warrant Shares
and, if this Warrant is exercised as to fewer than all the Warrant Shares to
which it relates, in respect of the issuance of a new Warrant. The Company will
not be required to issue any Warrant Shares or to issue a new Warrant registered
in a name other than that of the Warrant Holder until the Company receives
either evidence that any applicable transfer or similar taxes are not due or
have been paid or funds with which to pay those taxes.
ARTICLE III
ADJUSTMENT OF SHARES AND WARRANT PRICE
--------------------------------------
Section 3.01. The number of shares of Common Stock or other
------------
securities issuable on exercise of this Warrant (the "Exercise Rate") and the
-------------
Exercise Price are subject to adjustment from time to time as follows:
(a) If, after the date hereof, the Company, directly or indirectly,
(i) pays a dividend, or makes any other distribution, on its Common
Stock in shares of its Common Stock, (ii) subdivides the outstanding
Common Stock into a greater number of shares (by reclassification or
otherwise than by a dividend or distribution referred to in clause
(i)) or (iii) combines the outstanding Common Stock into a lesser
number of shares, in each such case, the Exercise Rate in effect at
the record date for the dividend or distribution or the effective date
of the subdivision or combination, will be adjusted so that, upon
exercise of this Warrant after the record date or effective date with
respect to a specified
-3-
number of Warrant Shares, the Warrant Holder will receive the number
and kind of shares which the Warrant Holder would have received if the
Warrant Holder had exercised this Warrant with respect to that number
of Warrant Shares immediately before the first of those events and
retained all the shares and other securities which the Warrant Holder
received as a result of each of those events.
(b) The Exercise Price in effect at any time shall be subject to
adjustment from time to time upon the happening of an event set forth
in Section 3.01(a) and shall be equal to the Exercise Price
immediately prior to such event multiplied by a fraction, the
numerator of which is the Exercise Rate immediately prior to such
event and the denominator of which is the Exercise Rate immediately
after such event.
(c) No adjustment in the Exercise Price pursuant to this Section 3.01
will be required until cumulative adjustments result in a concomitant
change of 1% or more of the Exercise Price as existed prior to the
last adjustment of the Exercise Price. However, any adjustments which
are not made because of this paragraph will be carried forward and
taken into account at the earlier of (i) any subsequent adjustments or
(ii) the exercise hereof. All calculations under this Section 3.01
will be made to the nearest cent or to the nearest whole share, as the
case may be.
(d) If any adjustment in the Exercise Price or in the Exercise Rate
becomes effective as of a record date for a specified event, and this
Warrant is exercised between that record date and the date the event
occurs, the Company may elect to defer, until the event occurs,
issuing to the Warrant Holder the shares of Common Stock or other
securities to which the Warrant Holder is entitled solely by reason of
that event. However, if the Company does so defer, when this Warrant
is exercised, the Company will deliver to the Warrant Holder a due
xxxx or other instrument evidencing the Warrant Holder's right to
receive the additional shares or other securities upon occurrence of
the event.
Section 3.02. Whenever the Exercise Price or the Exercise Rate are
------------
adjusted as provided in this Article III, the Company will send to the Warrant
Holder a certificate signed by its President, Secretary, Chief Executive Officer
or Treasurer, setting forth the adjusted Exercise Price, the adjusted Exercise
Rate and the date the adjustment became effective, and containing a brief
description of the events which caused the adjustment and the method by which
such adjustment was calculated.
Section 3.03. The form of Warrant need not be changed because of any
------------
change in the Exercise Price or in the Exercise Rate, and Warrants issued after
the change may state the same Exercise Price and the same number of Warrant
Shares as are stated in Warrants issued before the change. However, the Company
may at any time make any change in the form of Warrant that it deems appropriate
to reflect a change in the Exercise Price or in the Exercise Rate (provided the
change in the form of Warrant does not otherwise affect the terms, conditions,
provisions or substance of the Warrant), and any Warrant issued after the form
of Warrant is so changed may be in the changed form.
Section 3.04. Except as provided in Section 3.01, no adjustment in
------------
respect of dividends shall be made during the term of the Warrant or upon the
exercise of the Warrant. No adjustment shall be made in connection with the
issuance of Common Stock in connection with the private placement of up to
1,000,000 shares of the Company's Common Stock (the "Offering") pursuant to the
--------
Offering Document dated February 17, 1999, or the issuance of Common Stock upon
exercise of this Warrant or other warrants issued in connection with the
Offering.
-4-
ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANT HOLDER
------------------------
Section 4.01. Except as provided in the Placement Agreement, the
------------
Warrant Holder will not, as such, be entitled to voting rights, receive
dividends or have any other of the rights of a stockholder of the Company;
provided that, after this Warrant is exercised in accordance with Section 2, the
--------
persons in whose names the Warrant Shares purchased through exercise of this
Warrant are to be issued will be deemed to become the holders of record of those
Warrant Shares for all purposes even if certificates representing those Warrant
Shares are not issued.
Section 4.02.
------------
(a) The Company will at all times reserve and keep available for
issuance upon exercise of this Warrant the number of authorized and unissued
shares of Common Stock equal to the maximum number of shares of Common Stock
which the Company may be required to issue upon exercise of this Warrant from
time to time.
(b) All shares of Common Stock issued on exercise of this Warrant
will, when they are issued, be validly issued, fully paid, non-assessable and
free of preemptive rights.
Section 4.03. The Company will not be required to issue any fraction
------------
of a share upon exercise of this Warrant. In any case in which the Warrant
Holder would, except for the provisions of this Section 4.03, be entitled to
receive a fraction of a share upon exercise of this Warrant, the Company will,
upon exercise of this Warrant, (a) issue the maximum number of whole shares it
is required to issue, and (b) pay to the Warrant Holder, in cash, the product of
(i) such fraction multiplied by (ii) an amount equal to (x) the fair market
value of a Warrant Share, as determined in good faith by the Board minus (y) the
Exercise Price.
Section 4.04. Prior to due presentment for registration of transfer
------------
of this Warrant, the Company may treat the Warrant Holder as the absolute owner
of this Warrant for all purposes, including for the purpose of determining
exercise of this Warrant, despite any notice to the contrary.
ARTICLE V
TRANSFER OF WARRANTS
--------------------
Section 5.01. Neither this Warrant nor any shares of Common Stock or
------------
other securities issued on exercise of this Warrant may be sold, transferred,
assigned, or hypothecated except in accordance with the Subscription Agreement,
the Securities Act of 1933, as amended, and all applicable state securities
laws.
Section 5.02. Upon surrender of this Warrant to the Company at its
------------
office specified in Section 6.02 with the Form of Assignment attached hereto as
Exhibit A (the "Form of Assignment") (or another instrument of assignment) duly
--------- ------------------
executed and accompanied by (i) evidence that any transfer or similar tax is not
due or has been paid or funds sufficient to pay any transfer or similar tax, and
(ii) evidence reasonably satisfactory to the Company that the proposed
assignment will not violate Section 5.01, the Company will, without charge,
execute and deliver a new Warrant registered in the name of the assignee named
in the Form of Assignment (or other instrument of assignment) and will promptly
cancel
-5-
this Warrant. This Warrant may be divided or combined with other Warrants by
surrender of this Warrant and any other Warrants with which it is to be combined
at the principal office of the Company together with a written notice, signed by
the Warrant Holder, specifying the names and denominations in which new Warrants
are to be issued.
Section 5.03. Upon receipt by the Company of evidence reasonably
------------
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of indemnification
satisfactory to the Company, or (in the case of mutilation) upon surrender of
this Warrant, the Company will execute and deliver a new Warrant relating to the
same number of Warrant Shares as this Warrant and the lost, stolen, destroyed or
mutilated Warrant will become void. Any new Warrant executed and delivered in
accordance with this Section 5.03 will constitute an additional contractual
obligation of the Company and the Warrant Holder, and will be valid and
enforceable whether or not the Warrant which was believed to have been lost,
stolen or destroyed is subsequently presented for exercise.
ARTICLE VI
OTHER MATTERS
-------------
Section 6.01. The provisions of this Warrant will be binding upon,
------------
and inure to the benefit of, the Company and the Warrant Holder and their
respective successors and permitted assigns.
Section 6.02. Any notice or other communication to the Company or the
------------
Warrant Holder relating to this Warrant will be deemed given on the Business Day
when it is delivered or sent by facsimile transmission, or on the third Business
Day after the day on which it is sent by first-class mail, at the following
address (or such other address as may be specified by one party to the other
after the date of this Warrant):
If to the Company:
XxxxxxxXxxxxxxx.xxx, Inc.
X.X. Xxx 000000
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
If to the Warrant Holder, to the address set forth under the Warrant
Holder's signature on the signature page hereto.
Section 6.03. This Warrant will be governed by, and construed under,
------------
the laws of the State of Florida relating to contracts made and to be performed
in that state.
Section 6.04. The Article headings in this Warrant are for
------------
convenience only, are not part of this Warrant and are not intended to affect
the meaning or interpretation of any of the terms of this Warrant.
-6-
IN WITNESS WHEREOF, this Warrant has been executed by the Company and
the Warrant Holder as of the 17th day of March, 1999.
XXXXXXXXXXXXXXX.XXX, INC.
By: _____________________________
Xxxxxxx X. Xxxxxxxx, III, President
Accepted and agreed to:
"WARRANT HOLDER"
___________________________________
(Signature must conform to the name
of the Warrant Holder specified on
the face of the Warrant.)
Print Name:________________________
Address:___________________________
___________________________
___________________________
Telecopy No.:______________________
-7-
EXHIBIT A
---------
FORM OF ASSIGNMENT
------------------
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
attached Warrant to ____________________________________________ to the extent
of the right to purchase _________________ Warrant Shares, and the undersigned
appoints ___________________________, with full power of substitution, to
transfer that Warrant, with respect to the right to purchase that number of
Warrant Shares, on the books of XxxxxxxXxxxxxxx.xxx, Inc.
Dated: ________________, 1999
___________________________________
(Signature must conform to the name
of the Warrant Holder specified on
the face of the Warrant.)
EXHIBIT B
---------
SUBSCRIPTION FORM
-----------------
To: XxxxxxxXxxxxxxx.xxx, Inc.
The undersigned irrevocably elects to purchase ___________ Warrant Shares
by exercising the Warrant to which this form is attached (the "Warrant") and
will tender payment of the full Exercise Price with respect to those Warrant
Shares in accordance with Section 2.02 of the Warrant. The undersigned requests
that the certificates representing the Warrant Shares as to which the Warrant is
being exercised be registered as follows:
Name: _______________________________________
Social Security or Employer
Identification Number: _______________________________________
Address: _______________________________________
_______________________________________
Deliver to: _______________________________________
Address: _______________________________________
_______________________________________
If the Warrant Shares as to which the Warrant is being exercised are fewer
than all the Warrant Shares to which the Warrant relates, please issue a new
Warrant for the balance of the Warrant Shares registered in the name of the
undersigned and deliver it to the undersigned at the following address:
Address: _______________________________________
_______________________________________
This Subscription Form is governed in all respects by the provisions of the
Warrant.
Date: _____________________ Signature:___________________________________
(Signature must conform to the name
of the Warrant Holder specified on
the face of the Warrant.)
Total Exercise Price: $
_______________
Transfer Agent's
Charges: + 25.00
---------------
Total Payment Remitted
Herewith: $
===============
