THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE UTAH SECURITIES ACT. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF
COUNSEL ACCEPTABLE TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT.
GUM TECH INTERNATIONAL, INC.
Common Stock Purchase Warrant
To Subscribe for and Purchase
___________ Shares of Common Stock of
Gum Tech International, Inc.
THIS CERTIFIES that Intercontinental Capital Corp. or its registered
assigns (the "Holder") is entitled to subscribe for and purchase from Gum Tech
International, Inc., a Utah corporation (hereinafter called the "Company"), up
to _________ shares (subject to adjustment as hereinafter provided) of fully
paid and non-assessable Common Stock of the Company (the "Common Stock"),
subject to the provisions and upon the terms and conditions hereinafter set
forth at the price of $____ per share (such price as from time to time to be
adjusted as provided herein is called the "Warrant Price"), at or prior to 5:00
p.m. Pacific time on ____________, _____ (the "Exercise Period").
This Warrant and any Warrant subsequently issued upon exchange or transfer
hereof are hereinafter collectively called the "Warrant."
Section 1. EXERCISE OF WARRANT. The rights represented by this Warrant may
be exercised by the Holder, in whole or in part (but not as to fractional
shares) at any time or from time to time during the Exercise Period by the
completion of the purchase form attached hereto and by the surrender of this
Warrant (properly endorsed) at the office of the Company as it may designate by
notice in writing to the Holder hereof at the address of the Holder appearing on
the books of the Company, and by payment to the Company of the Warrant Price in
cash or by certified or official bank check, for each share being purchased. In
the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of the Holder or its nominee or other party designated in
the purchase form by the Holder hereof, shall be delivered to the Holder within
thirty (30) business days after the date on which the rights represented by this
Warrant shall have been so exercised; and, unless this Warrant has expired or
has been exercised in full, a new Warrant representing the number of shares
(except a remaining fractional share), if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
within such time. The person in whose name any certificate for shares of Common
Stock is issued upon exercise of this Warrant shall for all purposes be deemed
to have become the holder of record of such shares on the date on which this
Warrant was surrendered and payment of the Warrant is made, except that, if the
date of such surrender and payment is a date on which the stock transfer books
of the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which the
stock transfer
books are open. No fractional shares shall be issued upon exercise of this
Warrant and no payment or adjustment shall be made upon any exercise on account
of any cash dividends on the Common Stock issued upon such exercise.
Section 2. STOCK SPLITS, CONSOLIDATION, MERGER, AND SALE. In the event that
before the issuance of the shares of Common Stock into which this Warrant may be
exercised the outstanding shares of Common Stock shall be split, combined, or
consolidated, by dividend, reclassification or otherwise, into a greater or
lesser number of shares of Common Stock or any other class or classes of stock,
as appropriate, the Warrant Price in effect immediately prior to such
combination or consolidation and the number of shares purchasable under this
Warrant shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately adjusted. If there shall be effected any
consolidation or merger of the Company with another corporation, or a sale of
all or substantially all of the Company's assets to another corporation, and if
the holders of Common Stock shall be entitled pursuant to the terms of any such
transaction to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such consolidation, merger or
sale, lawful and adequate provisions shall be made whereby the Holder of this
Warrant shall thereafter have the right to receive, upon the basis and upon the
terms and conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the exercise of such Warrant, such
shares of stock, securities or assets as may be issuable or payable with respect
to or in exchange for a number of outstanding shares of such Common Stock equal
to the number of shares of such Common Stock immediately theretofore so
receivable had such consolidation, merger or sale not taken place, and in any
such case appropriate provisions shall be made with respect to the rights and
interests of the Holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of this Warrant.
(a) STOCK TO BE RESERVED. The Company will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon the exercise of this Warrant as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant.
(b) ISSUE TAX. The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Holders of this
Warrant for any issuance tax in respect thereof provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the Holder of this Warrant.
(c) CLOSING OF BOOKS. The Company will at no time close its transfer books
against the transfer of the shares of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant.
Section 3. NO SHAREHOLDER RIGHTS OR LIABILITIES. This Warrant shall not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision hereof, in the absence of affirmative action by the
Holder hereof to purchase shares of Common Stock, and no mere enumeration hereon
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of the rights or privileges of the Holder hereof, shall give rise to any
liability of such Holder for the Warrant Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
Section 4. REPRESENTATIONS OF HOLDER. The Holder hereby represents and
acknowledges to the Company that:
(a) this Warrant, the Common Stock issuable upon exercise of this Warrant
and any securities issued with respect to any of them by way of a stock dividend
or stock split or in connection with a recapitalization, merger, consolidation
or other reorganization ("Warrant Shares") will be "restricted securities" as
such term is used in the rules and regulations under the Securities Act and that
such securities have not been and may not be registered under the Securities Act
or any state securities law, and that such securities must be held indefinitely
unless registration is effected or transfer can be made pursuant to appropriate
exemptions;
(b) the Holder has read, and fully understands, the terms of this Warrant
set forth on its face and the attachments hereto, including the restrictions on
transfer contained herein;
(c) the Holder is purchasing for investment for its own account and not
with a view to or for sale in connection with any distribution of this Warrant
or the Warrant Shares of the Company issuable upon exercise of this Warrant and
it has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws; provided that nothing contained herein will prevent Holder from
transferring such securities in compliance with the terms of this Warrant and
the applicable federal and state securities laws;
(d) the Holder is an "accredited investor" within the meaning of paragraph
(a) of Rule 501 of Regulation D promulgated by the Securities and Exchange
Commission; and
(e) the Company may affix the following legend (in addition to any other
legend(s), if any, required by applicable state corporate and/or securities
laws) to certificates for Warrant Shares issued upon exercise of this Warrant:
These securities have not been registered under the Securities Act of 1933
or the Arizona Securities Act. These securities have been acquired for
investment and not with a view to distribution or resale, and may not be
sold, mortgaged, pledged, hypothecated or otherwise transferred without an
effective registration statement for such securities under the Securities
Act of 1933, or an opinion of counsel acceptable to the corporation that
registration is not required under such act.
Section 5. LIMITATIONS ON DISPOSITION.
(a) The Holder of this Warrant, by acceptance hereof, agrees to comply in
all respects with the provisions of this SECTION 5. Without in any way limiting
the representations set forth above, the Holder of this Warrant agrees not to
make any disposition of this Warrant or any Warrant Shares, unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
3
this SECTION 5 and the other provisions of this Warrant as if such transferee
were the original Holder hereof, provided and to the extent such provisions are
then applicable, and:
(i) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such Registration Statement; or
(ii)(A) the Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and the Company has
given its prior written consent, and (B) if reasonably requested by the Company,
the Holder shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of the Warrant and/or the Warrant Shares under the Act. It is
agreed that, if other appropriate supporting documentation is provided, the
Company will not require opinions of counsel for transactions made pursuant to
Rule 144 except in unusual circumstances.
(b) Notwithstanding the provisions of paragraph (a) above, (i) no such
Registration Statement, prior consent or opinion of counsel shall be necessary
for a transfer (A) by a Holder which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or to the
transfer by gift, will or intestate succession of any partner to his spouse or
to the siblings, lineal descendants or ancestors of such partner or his spouse,
or (B) to an "affiliate" of the Holder as that term is defined in Rule 405
promulgated by the Securities and Exchange Commission under the Securities Act,
if the transferee agrees in writing to be subject to the terms hereof to the
same extent as if he were an original Holder hereunder, and (ii) no transferee
shall be required, as a condition to any transfer of the Warrant or the Warrant
Shares by the Holder, to agree to be bound by this SECTION 5, if the transferee
is acquiring the Warrant and/or Warrant Shares pursuant to a Registration
Statement under the Securities Act or in a transaction made pursuant to Rule
144. Each new certificate evidencing the Warrant and/or Warrant Shares so
transferred shall bear the appropriate restrictive legends set forth in SECTION
4(e) above, except that such certificate shall not bear such restrictive legend
if, in the opinion of counsel for the Company, such legend is not required in
order to establish or assist in compliance with any provisions of the Securities
Act or any applicable state securities laws.
Section 6. PIGGYBACK REGISTRATION RIGHTS. Whenever the Company proposes to
register any of its equity securities under the Securities Act of 1933 (other
than pursuant to a registration statement on Form S-4 or S-8 or similar form)
and the registration form to be used may be used for the registration of the
Shares underlying this Warrant (a "PIGGYBACK REGISTRATION"), the Company shall
give prompt written notice to the holders of this Warrant or the Shares
underlying this Warrant of its intention to effect such a registration and shall
include in such registration all shares of Common Stock underlying this Warrant
with respect to which the Company has received written requests for inclusion
therein within 20 days after the receipt of the Companys notice.
Section 7. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated, or destroyed, the Company may direct a new Warrant
4
or Warrants to be issued in place of any Warrant or Warrants theretofore issued
by the Company alleged to have been lost, stolen, or destroyed, upon the making
of an affidavit of that fact by the person claiming the Warrant to be lost,
stolen, or destroyed. When authorizing such issue of a new Warrant or Warrants,
the Board of Directors may, in its discretion, and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen, or destroyed
Warrant or Warrants, or his legal representative, to advertise the same in such
manner as it shall require and/or give the corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
corporation with respect to the Warrant alleged to have been lost, stolen, or
destroyed.
Section 8. PRESENTMENT. Prior to due presentment of this Warrant, together
with a completed assignment form attached hereto for registration of transfer,
the Company may deem and treat the Holder as the absolute owner of the Warrant,
notwithstanding any notation of ownership or other writing thereon, for the
purpose of any exercise thereof and for all other purposes, and the Company
shall not be affected by any notice to the contrary.
Section 9. NOTICE. Notice or demand pursuant to this Warrant shall be
sufficiently given or made, if sent by first-class mail, postage prepaid,
addressed, if to the Holder of this Warrant, to the Holder at its last known
address as it shall appear in the records of the Company, and if to the Company,
at 000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer. The Company may alter the address to which communications are to be
sent by giving notice of such change of address in conformity with the
provisions of this SECTION 9 for the giving of notice.
Section 10. REDEMPTION. If the market price of the Company's Common Stock
is $20.00 per share or greater for any 10 (ten) consecutive trading days, the
Company shall have the option to call this Warrant for redemption at any time
for one year. The Company shall exercise this call option by written notice to
the Holder. Upon receipt of this notice, the Holder must exercise such portion
of the Warrant as called by Company, following the procedures of SECTION 1,
within 5 (five) trading days.
Section 11. GOVERNING LAW. The validity, interpretation, and performance of
this Warrant shall be governed by the laws of the State of Arizona without
regard to principles of conflicts of laws.
Section 12. SUCCESSORS, ASSIGNS. Subject to the restrictions on transfer by
Xxxxxx set forth in SECTION 5 hereof, all the terms and provisions of the
Warrant shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto.
Section 13. AMENDMENT. This Warrant may be modified, amended, or terminated
by a writing signed by the Company and the Holder.
Section 14. SEVERABILITY. Should any part but not the whole of this Warrant
for any reason be declared invalid, such decision shall not affect the validity
of any remaining portion, which remaining portion shall remain in force and
effect as if this Warrant had been executed with the invalid portion thereof
5
eliminated, and it is xxxxxx declared the intention of the parties hereto that
they would have executed the remaining portion of this Warrant without including
therein any such part which may, for any reason, be hereafter declared invalid.
Gum Tech International, Inc.
a Utah corporation
Dated:
------------------------ -----------------------------------
By:
-------------------------------
Title:
----------------------------
The undersigned Xxxxxx agrees and accepts this Warrant and acknowledges
that it has read and confirms each of the representations contained in Section
4.
Intercontinental Capital Corp.
-----------------------------------
By:
-------------------------------
Title:
----------------------------
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PURCHASE FORM
(To be executed by the Warrant Holder if he desires to exercise the Warrant in
whole or in part)
To: Gum Tech International, Inc.
The undersigned, whose Social Security or other identifying number is
_______________, hereby irrevocably elects the right of purchase represented by
the within Warrant for, and to purchase thereunder, ______________ shares of
Common Stock provided for therein and tenders payment herewith to the order of
Gum Tech International, Inc. in the amount of $_______________.
The undersigned requests that certificates for such shares be issued as follows:
Name:
-----------------------------------------
Address:
--------------------------------------
Deliver to:
-----------------------------------
Address:
-----------------------------------
-----------------------------------
-----------------------------------
and, if said number of shares shall not be all the shares purchasable hereunder,
that a new Warrant for the balance remaining of the shares purchasable under the
within Warrant be registered in the name of, and delivered to, the undersigned
at the address stated below:
Address:
--------------------------------------
Dated: Signature:
---------------------- -----------------------------------
(Signature must conform in all respects to
the name of the Warrant Holder as specified
on the face of the Warrant, without
alteration, enlargement or any change
whatsoever)
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ASSIGNMENT
(To be executed by the Warrant Holder if he desires to effect a transfer of the
Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________ ______________________________, whose Social Security or other
identification number is __________________________ [residing/located] at
____________________________ ____________________ the attached Warrant, and
appoints ______________________________________________________ residing at
_____________________________________________ the undersigned's attorney-in-fact
to transfer said Warrant on the books of the Company, with full power of
substitution in the premises.
Dated:
-------------------------
In the presence of:
---------------------------------------------
(Signature must conform in all respects to
the name of the Warrant Holder as specified
on the face of the Warrant, without
alteration, enlargement or any change
whatsoever)
