XXXXXX XXXXX INCORPORATED
(a Nevada corporation)
Warrant for the Purchase of
Shares of Common Stock, Par Value $0.001
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THIS WARRANT WILL BE VOID
AFTER 11:59 P.M. MOUNTAIN TIME ON NOVEMBER 1, 1998
This Warrant has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and is a "restricted security" within the
meaning of Rule 144 promulgated under the Securities Act. This Warrant has been
acquired for investment and may not be sold or transferred without complying
with Rule 144 in the absence of an effective registration or other compliance
under the Securities Act.
This certifies that, for value received, (the
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"Holder"), is entitled to subscribe for, purchase, and receive fully
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paid and nonassessable shares of common stock, par value $0.001 (the "Warrant
Shares"), of Xxxxxx Xxxxx Incorporated, a Nevada corporation (the "Company"), at
the price of $6.25 per Warrant Share (the "Exercise Price"), at any time or from
time to time subsequent to November 1, 1996 and prior to 11:59 p.m. mountain
time on November 1, 1998 (the "Exercise Period"), on presentation and surrender
of this Warrant with the purchase form attached hereto, duly executed, at the
principal office of the Company at 0000 Xxxx 000 Xxxxx, Xxxxx, Xxxx 00000, and
by paying in full and in lawful money of the United States of America by cash or
cashier's check, the Exercise Price for the Warrant Shares as to which this
Warrant is exercised, on all the terms and conditions hereinafter set forth.
The number of Warrant Shares to be received on exercise of this Warrant and the
Exercise Price may be adjusted on the occurrence of such events as described
herein. If the subscription rights represented hereby are not exercised by
11:59 p.m. mountain time on November 1, 1998, this Warrant shall automatically
become void and of no further force or effect, and all rights represented hereby
shall cease and expire.
Subject to the terms set forth herein, this Warrant may be exercised by the
Holder in whole or in part by execution of the form of exercise attached hereto
and payment of the Exercise Price in the manner described above.
1. Exercise of Warrants. On the exercise of all or any portion of this
Warrant in the manner provided above, the Holder exercising the same shall be
deemed to have become a holder of record of the Warrant Shares for all purposes,
and certificates for the securities so purchased shall be delivered to the
Holder within a reasonable time, but in no event longer than ten days after this
Warrant shall have been exercised as set forth above. If this Warrant shall be
exercised in respect to only a part of the Warrant Shares covered hereby, the
Holder shall be entitled to receive a similar Warrant of like tenor and date
covering the number of Warrant Shares with respect to which this Warrant shall
not have been exercised. On the exercise of all or any portion of this Warrant,
at the instruction of the Holder, the Company shall offset any amounts due by it
to Holder against payment of the exercise price for the Warrants.
2. Limitation on Transfer. Subject to the restrictions set forth in
paragraph 7 hereof, this Warrant is transferable at the offices of the Company.
In the event this Warrant is assigned in the manner provided herein, the
Company, upon request and upon surrender of this Warrant by the Holder at the
principal office of the Company accompanied by payment of all transfer taxes, if
any, payable in connection therewith, shall transfer this Warrant on the books
of the Company. If the assignment is in whole, the Company shall execute and
deliver a new Warrant or Warrants of like tenor to this Warrant to the
appropriate assignee expressly evidencing the right to purchase the aggregate
number of shares of common stock purchasable hereunder; and if the assignment is
in part, the Company shall execute and deliver to the appropriate assignee a new
Warrant or Warrants of like tenor expressly evidencing the right to purchase the
portion of the aggregate number of Warrant Shares as shall be contemplated by
any such transfer, and shall concurrently execute and deliver to the Holder a
new Warrant of like tenor to this Warrant evidencing the right to purchase the
remaining portion of the Warrant Shares purchasable hereunder which have not
been transferred to the assignee.
3. Exchange of Warrants. This Warrant is exchangeable, on the
presentation and surrender hereof by the Holder at the office of the Company,
for a new Warrant or Warrants of like tenor representing in the aggregate the
right to subscribe for and purchase the number of Warrant Shares which may be
subscribed for and purchased hereunder.
4. Fully Paid Shares. The Company covenants and agrees that the Warrant
Shares which may be issued on the exercise of the rights represented by this
Warrant will be, when issued, fully paid and nonassessable and free from all
taxes, liens, and charges with respect to the issue thereof. The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will have authorized
and reserved a sufficient number of shares of common stock to provide for the
exercise of the rights represented by this Warrant.
5. Antidilution Provisions. The Warrant Price and number of Warrant
Shares purchasable pursuant to this Warrant may be subject to adjustment from
time to time as follows:
(a) If the Company shall take a record of the holders of its common
stock for the purpose of entitling them to receive a dividend in shares,
the Warrant Price in effect immediately prior to such record date shall be
proportionately decreased, such adjustment to become effective immediately
after the opening of business on the day following such record date.
(b) If the Company shall subdivide the outstanding shares of common
stock into a greater number of shares, combine the outstanding shares of
common stock into a smaller number of shares, or issue by reclassification
any of its shares, the Warrant Price in effect immediately prior thereto
shall be adjusted so that the Holder of this Warrant thereafter surrendered
for exercise shall be entitled to receive, after the occurrence of any of
the events described, the number of Warrant Shares to which the Holder
would have been entitled had such Warrant been exercised immediately prior
to the occurrence of such event. Such adjustment shall become effective
immediately after the opening of business on the day following the date on
which such subdivision, combination, or reclassification, as the case may
be, becomes effective.
(c) If any capital reorganization or reclassification of the
Company's common stock, or consolidation or merger of the Company with
another corporation or the sale of all or substantially all of its assets
to another corporation shall be effected in such a way that holders of
common stock shall be entitled to receive stock, securities, or assets with
respect to or in exchange for common stock, then, as a condition of such
reorganization, reclassification, consolidation, merger, or sale, lawful
adequate provisions shall be made whereby the Holder of this Warrant shall
thereafter have the right to acquire and receive on exercise hereof such
shares of stock, securities, or assets as would have been issuable or
payable (as part of the reorganization, reclassification, consolidation,
merger, or sale) with respect to or in exchange for such number of
outstanding common shares of the Company as would have been received on
exercise of this Warrant immediately before such reorganization,
reclassification, consolidation, merger, or sale.
In any such case, appropriate provision shall be made with respect to
the rights and interests of the Holder of this Warrant to the end that the
provisions hereof shall thereafter be applicable in relation to any shares
of stock, securities, or assets thereafter deliverable on the exercise of
this Warrant. In the event of a merger or consolidation of the Company
with or into another corporation or the sale of all or substantially all of
its assets which results in the issuance of a number of shares of common
stock of the surviving or purchasing corporation greater or less than the
number of shares of common stock of the Company outstanding immediately
prior to such merger, consolidation, or purchase are issuable to holders of
common stock of the Company, then the Warrant Price in effect immediately
prior to such merger, consolidation, or purchase shall be adjusted in the
same manner as though there was a subdivision or combination of the
outstanding shares of common stock of the Company. The Company will not
effect any such consolidation, merger, or sale unless prior to the
consummation thereof the successor corporation resulting from such
consolidation or merger or the corporation purchasing such assets shall
assume by written instrument mailed or delivered to the Holder hereof at
its last address appearing on the books of the Company, the obligation to
deliver to such Holder such shares of stock, securities, or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
acquire on exercise of this Warrant.
(d) If: (i) the Company shall take a record of the holders of its
shares of common stock for the purpose of entitling them to receive a
dividend payable otherwise than in cash, or any other distribution in
respect of the shares of common stock (including cash), pursuant to,
without limitation, any spin-off, split-off, or distribution of the
Company's assets; or (ii) the Company shall take a record of the holders of
its shares of common stock for the purpose of entitling them to subscribe
for or purchase any shares of any class or to receive any other rights; or
(iii) in the event of any classification, reclassification, or other
reorganization of the shares which the Company is authorized to issue,
consolidation or merger of the Company with or into another corporation, or
conveyance of all or substantially all of the assets of the Company; or
(iv) in the event of the voluntary or involuntary dissolution, liquidation,
or winding up of the Company; then, and in any such case, the Company shall
mail to the Holder of this Warrant, at least 30 days prior thereto, a
notice stating the date or expected date on which a record is to be taken
for the purpose of such dividend, distribution or rights, or the date on
which such classification, reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up, as the case
may be. Such notice shall also specify the date or expected date, if any
is to be fixed, as of which holders of shares of common stock of record
shall be entitled to participate in such dividend, distribution, or rights,
or shall be entitled to exchange their shares of common stock for
securities or other property deliverable upon such classification,
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation, or winding up, as the case may be.
(e) If the Company, at any time while this Warrant shall remain
unexpired and unexercised, sells shares of common stock to an affiliate of
the Company, excluding shares issued on the exercise of options issued and
outstanding as of the date hereof and shares issued to officers and
directors under stock option plans of the Company existing as of the date
hereof, at a price lower than the Exercise Price provided herein, as the
same may from time to time be adjusted pursuant to this section 5, then the
Exercise Price of these Warrants shall be reduced automatically to such
lower price at which the Company has sold common stock.
(f) No fraction of a share shall be issued on exercise, but, in lieu
thereof, the Company, notwithstanding any other provision hereof, may pay
therefor in cash at the fair value of any such fractional share at the time
of exercise.
6. Disposition of Warrants or Warrant Shares. The registered owner of
this Warrant, by acceptance hereof, agrees for himself and any subsequent
owner(s) that, before any disposition is made of any Warrant Shares, the
owner(s) shall give written notice to the Company describing briefly the manner
of any such proposed disposition. No such disposition shall be made unless and
until:
(a) the Company has received an opinion from counsel for the owner(s)
of the Warrant Shares stating that no registration under the Securities Act
is required with respect to such disposition; or
(b) a registration statement or post-effective amendment to a
registration statement under the Securities Act has been filed by the
Company and made effective by the Commission covering such proposed
disposition.
7. Registration of Warrant Shares. On request of the Holder, the Company
shall use its best efforts to file a registration statement under the Securities
Act to register the resale of the Warrant Shares issuable on the exercise of
this Warrant, shall utilize its best efforts to cause such registration
statement to become effective as soon as is commercially reasonable, and shall
maintain the effectiveness of such registration statement for a period of two
years, unless the Company's legal counsel is of the reasonable opinion that
registration is not required in order to dispose of the Warrant Shares. The
Holder(s) shall cooperate with the Company and shall furnish such information as
the Company may request in connection with any such registration statement
hereunder, on which the Company shall be entitled to rely.
8. Governing Law. This agreement shall be construed under and be
governed by the laws of the state of Nevada.
9. Notices. All notices, demands, requests, or other communications
required or authorized hereunder shall be deemed given sufficiently if in
writing and if personally delivered; if sent by facsimile transmission,
confirmed with a written copy thereof sent by second day express delivery or
registered mail, return receipt requested and postage prepaid; if sent by
registered mail or certified mail, return receipt requested and postage prepaid;
or if sent by second day express delivery:
If to the Company, to: Xxxxxx Xxxxx Incorporated
Attn: Xxxxx X. Xxxxxx, President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
Facsimile Transmission: (000) 000-0000
Confirmation: (000) 000-0000
If to the Holder:
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Facsimile Transmission: ( ) -
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Confirmation: ( ) -
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With copies to:
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Facsimile Transmission: ( ) -
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Confirmation: ( ) -
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or other such addresses and facsimile numbers as shall be furnished by any party
in the manner for giving notices hereunder, and any such notice, demand,
request, or other communication shall be deemed to have been given as of the
date so delivered or sent by facsimile transmission, three days after the date
so mailed, or two days after the date so sent by second day delivery.
10. Loss, Theft, Destruction, or Mutilation. Upon receipt by the Company
of reasonable evidence of the ownership of and the loss, theft, destruction, or
mutilation of this Warrant, the Company will execute and deliver, in lieu
thereof, a new Warrant of like tenor.
11. Taxes. The Company will pay all taxes in respect of the issue of this
Warrant or the Warrant Shares issuable upon exercise thereof.
DATED this 30th day of May, 1996.
XXXXXX XXXXX INCORPORATED
By
Xxxxx X. Xxxxxx, President
Form of Assignment
(to be signed only upon assignment of Warrant)
TO: Xxxxxx Xxxxx Incorporated
Attn: President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
FOR VALUE RECEIVED, does hereby sell, assign, and
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transfer unto the right to purchase shares of
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common stock of XXXXXX XXXXX INCORPORATED (the "Company"), evidenced by the
attached Warrant, and does hereby irrevocably constitute and appoint
attorney to transfer such right on the books of the Company
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with full power of substitution in the premises.
DATED this day of , 19 .
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Signature:
Signature Guaranteed:
NOTICE: The signature to the form of assignment must correspond with the name
as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
Form Of Purchase
(to be signed only upon exercise of Warrant)
TO: Xxxxxx Xxxxx Incorporated
Attn: President
0000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
The undersigned, the owner of the attached Warrant, hereby irrevocably
elects to exercise the purchase rights represented by the Warrant for, and to
purchase thereunder, shares of the common stock of XXXXXX XXXXX
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INCORPORATED and herewith makes payment of $ therefor (at the rate of
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$6.25 per share of common stock). Please issue the shares of common stock as to
which this Warrant is exercised in accordance with the enclosed instructions
and, if the Warrant is being exercised with respect to less than all of the
shares to which it pertains, prepare and deliver a new Warrant of like tenor for
the balance of the shares of common stock purchasable under the attached
Warrant.
DATED this day of , 19 .
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Signature:
Signature Guaranteed:
