Exhibit 10.11
FORM OF ADVISOR
WARRANT
WARRANT NO. FA__
WARRANT TO PURCHASE
SHARES
OF COMMON STOCK OF
Across America Financial
Services, Inc
(Pending Name change to Omni Bio
Pharmaceutical, Inc.)
Warrant to Purchase 1,750,000
Shares
(subject to adjustment as set forth
herein)
Exercise Price $.001 Per
Share
(subject to adjustment as set forth
herein)
VOID AFTER 5 P.M., MST, March 31,
2014
THE SECURITIES
REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR REGISTERED OR
QUALIFIED UNDER ANY OTHER APPLICABLE FEDERAL OR STATE SECURITIES
LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD, OR OTHERWISE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR QUALIFICATION
FILED IN ACCORDANCE WITH THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT.
Across America
Financial Services, Inc. (whose name is being changed to Omni Bio
Pharmaceutical, Inc.), 5350 South Roslyn, Suite 400, Greenwood
Village, CO 80111, (the "Company"), hereby certifies that, for a
purchase price of $100 in value received,
Bathgate Capital Partners
LLC
5350 South Roslyn, Suite
400
Greenwood Village, CO
80111
(who, together
with any subsequent holder of the Warrant, is referred to as the
"Holder"), is entitled, subject to the terms and conditions set
forth below, to purchase from the Company at any time before 5
p.m., MST time, on March 31, 2014 ("Expiration Date), up
to
One Million, Seven Hundred Fifty
Thousand (1,750,000)
of the
Company's $.001 par value Common Stock (the "Shares") at a purchase
price of $.001 per Share (the "Exercise Price").
The term
"Warrant" as used herein shall include this Warrant and any
Warrants issued in substitution for or replacement of this Warrant,
or any Warrants into which this Warrant may be divided or
exchanged. The number and character of the securities
purchasable upon exercise of this Warrant and the Exercise Price
are subject to adjustment as provided below.
This Warrant
may be assigned, transferred, sold, offered for sale, or exercised,
in whole or in part, by the Holder upon compliance with all the
pertinent provisions hereof.
The following
terms used in this agreement shall have the following meanings
(unless otherwise expressly provided herein):
The
“Act.”
The Securities Act of 1933, as
amended.
“Cashless
Exercise” The provision provided to the warrant holder
whereby the warrant holder may elect to exercise the warrant by
turning in a portion of the value of the shares, at the time of
exercise, in payment for the shares in lieu of cash
payment.
The
“Commission.” The Securities and Exchange
Commission.
The
“Company.” Across America Financial Services,
Inc., whose name is in process of being changed to Omni Bio
Pharmaceutical, Inc.
“
Common Stock .” The Company’s Common
Stock.
"Current
Market Price.” The Current Market Price shall be determined as
follows:
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(a) if the security at issue is
listed on a national securities exchange or admitted to unlisted
trading privileges on such an exchange or quoted on either the
National Market System or the Small Cap Market of the automated
quotation service operated by The Nasdaq Stock Market, Inc., the
current value shall be the last reported sale price of that
security on such exchange or system on the day for which the
Current Market Price is to be determined or, if no such sale is
made on such day, the average of the highest closing bid and lowest
asked price for such day on such exchange or system; or
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(b) if the security at issue is not
so listed or quoted or admitted to unlisted trading privileges, the
Current Market Value shall be the last reported sale price quoted
on the Electronic Bulletin Board operated by The Nasdaq Stock
Market, Inc., or, if not so quoted, then by the National Quotation
Bureau, Inc. on the last business day prior to the day for which
the Current Market Price is to be determined; or
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(c) if the security at issue is not
so listed or quoted or admitted to unlisted trading privileges and
bid and asked prices are not reported, the current market value
shall be determined in such reasonable manner as may be prescribed
from time to time by the Board of Directors of the Company, subject
to the objection and arbitration procedure as described in Section
6 below.
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“Derivative
Securities” Securities which are either convertible or
exercisable into the Company’s common stock such as warrants
or convertible debt.
“Exercise
Date.” March 31,
2009.
“Exercise Price.” $.001 per Share, as
modified in accordance with Section 4, below.
“Expiration Date.” March 31,
2014.
“FINRA” FINANCIAL
INDUSTRY REGULATORY AUTHORITY
“Holder “ or “Warrant
holder.” The person to whom this
Warrant is issued, and any valid transferee thereof pursuant to
Section 3.1 below.
“Lock-up
Agreement.” A Holder who owns shares of the Company’s
common stock or any securities convertible into or exchangeable for
shares of the Company’s stock that in the aggregate are in
excess of 1% of Company’s common stock issued and outstanding
upon completion of the Agreement of Merger and Plan of
Reorganization is subject to a three year lock-up agreement as
specified in the attached agreement “Exhibit C – Three
Year Lock-up Agreement”. A Holder who owns
shares of the Company’s common stock or any securities
convertible into or exchangeable for shares of the Company’s
stock that in the aggregate are less than or equal to 1% of
Company’s common stock issued and outstanding upon completion
of the Agreement of Merger and Plan of Reorganization is subject to
a two year lock-up agreement as specified in the attached agreement
“Exhibit C – Two Year Lock-up Agreement. In
general, this requires the Holder of the warrant or any underlying
common stock to hold the warrant or the underlying common stock for
the referenced period from the date of closing of March 31, 2009,
except as further delineated by the lockup agreement.
“Nasdaq.”
The automated quotation system
operated by the NASDAQ Stock Market, Inc.
“Termination of
Business.” Any sale, lease or
exchange of all, or substantially all, of the Company's assets or
business or any dissolution, liquidation or winding up of the
Company.
“Warrants.” The warrants issued in
accordance with the terms of this Agreement and any Warrants issued
in substitution for or replacement of such warrants, including
those evidenced by a warrant or warrants originally issued or
issued upon division, exchange, substitution or transfer pursuant
to this Agreement.
“Warrant Shares .” The Common Stock purchasable
upon exercise of a Warrant including the Common Stock underlying
unexercised portions of a Warrant.
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(a)
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Subject to the
other terms and conditions of this Warrant, the purchase rights
evidenced by this Warrant may be exercised in whole or in part at
any time, and from time to time before the Expiration Date, by the
Holder's presentation and surrender of this Warrant to the Company
at its principal office or at the office of the Company's stock
transfer agent, if any, accompanied by a duly executed Notice of
Exercise, in the form attached to and by this reference
incorporated in this Warrant as Exhibit A, and by payment of
the aggregate Exercise Price, in immediately available funds, for
that number of Warrant Securities specified in the Notice of
Exercise. In the event this Warrant is exercised in part
only, as soon as is practicable after the presentation and
surrender of this Warrant to the Company for exercise, the Company
shall execute and deliver to the Holder a new Warrant, containing
the same terms and conditions as this Warrant, evidencing the right
of the Holder to purchase that number of Warrant Securities as to
which this Warrant has not been exercised.
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(b)
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Upon receipt of this Warrant by the Company as
described in subsection (a) above, the Holder shall be deemed
to be the holder of record of the Warrant Securities issuable upon
such exercise, notwithstanding that the transfer books of the
Company may then be closed or that certificates representing such
Warrant Securities may not have been prepared or actually delivered
to the Holder.
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Exchange, Assignment or Loss of
Warrant.
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(a)
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This Warrant
may be sold, transferred or assigned at any time, in whole or in
part, if (i) the transfer is by operation of law as a result
of the death of any Holder to whom all or a portion of this Warrant
may be transferred, (ii) the transfer is to any successor of
the Holder's business and (iii) the transfer is to such other
persons for which an exemption from the registration requirements
of the Act can be established to the satisfaction of the
Company. All sales, transfers, assignments or
hypothecations of this Warrant must be in compliance with
Section 8 hereof. Any assignment or transfer of
this Warrant shall be made by the presentation and surrender of
this Warrant to the Company at its principal office or the office
of its transfer agent, if any, accompanied by a duly executed
Assignment Form, in the form attached to and by this reference
incorporated in this Warrant as Exhibit B. Upon the
presentation and surrender of these items to the Company, the
Company, at its sole expense, shall execute and deliver to the new
Holder or Holders a new Warrant or Warrants, containing the same
terms and conditions as this Warrant, in the name of the new Holder
or Holders as named in the Assignment Form, and this Warrant shall
at that time be canceled.
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(b)
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This Warrant,
alone or with other Warrants containing the same terms and
conditions and owned by the same Holder, is exchangeable at the
option of the Holder but at the Company's sole expense, at any time
prior to its expiration either by its terms or by its exercise in
full upon presentation and surrender to the Company at its
principal office or at the office of its transfer agent, if any,
for another Warrant or other Warrants, of different denominations
but containing the same terms and conditions as this Warrant,
entitling the Holder to purchase the same aggregate number of
Warrant Securities that were purchasable pursuant to the Warrant or
Warrants presented and surrendered. At the time of
presentation and surrender by the Holder to the Company, the Holder
also shall deliver to the Company a written notice, signed by the
Holder, specifying the denominations in which new Warrants are to
be issued to the Holder.
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(c)
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The Company
will execute and deliver to the Holder a new Warrant containing the
same terms and conditions as this Warrant upon receipt by the
Company of evidence reasonably satisfactory to it of the loss,
theft, destruction, or mutilation of this Warrant, provided that
(i) in the case of loss, theft, or destruction, the Company
receives from the Holder a reasonably satisfactory indemnification,
and (ii) in the case of mutilation, the Holder presents and
surrenders this Warrant to the Company for
cancellation. Any new Warrant executed and delivered
shall constitute an additional contractual obligation on the part
of the Company regardless of whether the Warrant that was lost,
stolen, destroyed, or mutilated shall be enforceable by anyone at
any time.
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Anti-Dilution Provisions.
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Stock Splits, Dividends, Etc.
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(a)
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If the Company
shall at any time subdivide its outstanding shares of Common Stock
(or other securities at the time receivable upon the exercise of
the Warrant) by recapitalization, reclassification or split-up
thereof, or if the Company shall declare a stock dividend or
distribute shares of Common Stock to its stockholders, the number
of shares of Common Stock subject to this Warrant immediately prior
to such subdivision shall be proportionately increased, and if the
Company shall at any time combine the outstanding shares of Common
Stock by recapitalization, reclassification or combination thereof,
the number of shares of Common Stock subject to this Warrant
immediately prior to such combination shall be proportionately
decreased. Any such adjustment and adjustment to the
Exercise Price pursuant to this section shall be effective at
the close of business on the effective date of such subdivision or
combination or if any adjustment is the result of a stock dividend
or distribution then the effective date for such adjustment based
thereon shall be the record date therefore.
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(b)
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Whenever the
number of shares of Common Stock purchasable upon the exercise of
this Warrant is adjusted, as provided in this section, the Exercise
Price shall be adjusted to the nearest cent by multiplying such
Exercise Price immediately prior to such adjustment by a fraction
(x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise immediately prior to such
adjustment, and (y) the denominator of which shall be the number of
shares of Common Stock so purchasable immediately
thereafter.
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Adjustment
for Reorganization, Consolidation, Merger, Etc
. In case of any
reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of
this Warrant) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to
another corporation, then, and in each such case, the Holder of
this Warrant upon the exercise at any time after the consummation
of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such
consummation, the securities or property to which such Holder would
have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto; in each such
case, the terms of this Warrant shall be applicable to the
securities or property received upon the exercise of this Warrant
after such consummation.
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Certificate
as to Adjustments . In each case of an adjustment in
the number of shares of Common Stock receivable on the exercise of
this Warrant, the Company at its expense shall promptly compute
such adjustment in accordance with the terms of the Warrant and
prepare a certificate executed by an officer of the Company setting
forth such adjustment and showing the facts upon which such
adjustment is based. The Company shall forthwith mail a
copy of each such certificate to each Holder. The
failure to prepare or provide such certificate shall not modify the
rights of any party hereunder.
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Notices of Record Date, Etc. In
case:
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(a)
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the Company
shall take a record of the holders of its Common Stock (or other
securities at the time receivable upon the exercise of the Warrant)
for the purpose of entitling them to receive any dividend (other
than a cash dividend at the same rate as the rate of the last cash
dividend theretofore paid) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or to receive any other right;
or
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(b)
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of any
voluntary or involuntary dissolution, liquidation or winding-up of
the Company, then, and in each such case, the Company shall mail or
cause to be mailed to each Holder a notice specifying, as the case
may be, (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or
(ii) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, to be fixed, as
to which the holders of record of Common Stock (or such other
securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock
(or such other securities) for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty
(20) days prior to the date therein specified, and this Warrant may
be exercised prior to said date during the term of the
Warrant.
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Threshold
for Adjustments . Anything in this section to the
contrary notwithstanding, the Company shall not be required to give
effect to any adjustment until the cumulative resulting adjustment
in the Exercise Price pursuant to Subsection 6.1.2 shall have
required a change of the Exercise Price by at least $.01, but when
the cumulative net effect of more than one adjustment so determined
shall be to change the Exercise Price by at least $.01, such full
change in the Exercise Price shall thereupon be given
effect. No adjustment shall be made by reason of the
issuance of shares upon conversion rights, stock issuance rights or
similar rights currently outstanding or any change in the number of
treasury shares held by the Company.
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Reservation
of Warrant Securities . The Company hereby agrees that at
all times prior to the Expiration Date, it will have authorized and
will reserve and keep available for issuance and delivery to the
Holder that number of Warrant Securities that may be required from
time to time for issuance and delivery upon the exercise of the
then unexercised portion of this Warrant and all other similar
Warrants then outstanding and unexercised and upon the exercise of
any Warrant Securities.
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Transfer to Comply With the Securities Act
of 1933.
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(a)
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This Warrant,
the Warrant Securities, and all other securities issued or issuable
upon exercise of this Warrant, may not be offered, sold or
transferred, in whole or in part, except in compliance with the
Act, and except in compliance with all applicable state securities
statutes.
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(b)
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The Company may
cause the following legend, or its equivalent, to be set forth on
each certificate representing the Warrant Securities, or any other
security issued or issuable upon exercise of this Warrant, not
theretofore distributed to the public or sold to underwriters, as
defined by the Act, for distribution to the public pursuant to
Section 7 above:
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"The securities
represented by this Certificate have not been registered under the
Securities Act of 1933 ("the Act") and are 'restricted securities'
as that term is defined in Rule 144 under the
Act. The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration
statement under the Act or pursuant to an exemption from
registration under the Act, the availability of which is to be
established to the satisfaction of the Company."
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Fractional
Shares . No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of all or any part of this
Warrant. With respect to any fraction of a share of any
security called for upon any exercise of this Warrant, the Company
shall pay to the Holder an amount in money equal to that fraction
multiplied by the current market value of that
share. The current market value shall be determined as
follows:
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(i)
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if the security
at issue is listed on a national securities exchange or admitted to
unlisted trading privileges on such an exchange or listed on the
National Association of Securities Dealers National Market System,
the current value shall be the last reported sale price of that
security on such exchange or system on the last business day prior
to the date of the applicable exercise of this Warrant or, if no
such sale is made on such day, the average of the highest closing
bid and lowest asked price for such day on such exchange or system;
or
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(ii)
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if the security
at issue is not so listed or admitted to unlisted trading
privileges, the current market value shall be the average of the
last reported highest bid and lowest asked prices quoted on the
National Association of Securities Dealers Automated Quotations
System or, if not so quoted, then by the National Quotation Bureau,
Inc. on the last business day prior to the day of the applicable
exercise of this Warrant; or
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(iii)
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if the security
at issue is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not reported, the current
market value shall be determined in such reasonable manner as may
be prescribed from time to time by the Board of Directors of the
Company, subject to the arbitration procedure as described in
Section 15 below if a Holder delivers written notice to the
Company of an objection within thirty (30) days after the
Board’s decision.
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Rights of
the Holder, Registration
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