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Exhibit 10.07
THIS
WARRANT OR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO, (ii) AN OPINION OF COUNSEL FOR THE HOLDER, REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED, (iii) RECEIPT OF A NO-ACTION LETTER(S) FROM THE
APPROPRIATE GOVERNMENTAL AUTHORITY(IES), OR (iv) OTHERWISE
COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THIS
WARRANT.
SERIES
F WARRANT TO PURCHASE SHARES
OF
COMMON STOCK
Warrant
No.: F-
Deer
Valley Corporation, a Florida corporation (the “
Company ”), hereby certifies that, for
value received, _________ (the “
Holder ”), or registered assigns, is
the registered holder of a warrant (the “
Warrant ”) to subscribe for and
purchase 250,000 shares of the fully paid and
nonassessable Common Stock (as adjusted pursuant to Section
4 hereof, the “ Warrant Shares
”) of the Company, at a price per share equal to two
dollars and twenty five cents ($2.25)(the “
Warrant Price ,” as adjusted pursuant
to Section 4 hereof), subject to the provisions and
upon the terms and conditions hereinafter set
forth.
As used herein,
(a) the term “ Common Stock
” shall mean the Company’s presently authorized
Common Stock, par value $0.001 per share, and any stock into
or for which such Common Stock may hereafter be converted or
exchanged, (b) the term “ Date of
Grant ” shall mean the date on the signature
page of this Warrant, and (c) the term “
Other Warrants ” shall mean any
warrant issued upon transfer or partial exercise of this
Warrant. The term “ Warrant
” as used herein shall be deemed to include Other
Warrants unless the context hereof or thereof clearly
requires otherwise.
1.
Term . The purchase right represented by
this Warrant is exercisable, in whole or in part, at any time
after the Date of Grant (the “ Initial Exercise
Date ”) and from time to time thereafter
through and including the close of business on the date five
(5) years from the Initial Exercise Date (the “
Expiration Date ” ) ;
provided , however , that in the event that any
portion of this Warrant is unexercised as of the Expiration
Date, the terms of Section 2(b) , below, shall
apply.
2.
Exercise; Expiration; Redemption .
a.
Method of Exercise; Payment; Issuance of New Warrant
. Subject to Section 1 hereof, the purchase
right represented by this Warrant may be exercised by the
holder hereof, in whole or in part and from time to time after
the Initial Exercise Date, by the surrender of this Warrant
(with the notice of exercise form attached hereto as
Exhibit A duly executed) at the
principal office of the Company and by the payment to the
Company of an amount equal to the then applicable Warrant
Price multiplied by the number of Warrant Shares then being
purchased. The person or persons in whose name(s)
any certificate(s) representing shares of Common Stock shall
be issuable upon exercise of this Warrant shall be deemed to
have become the holder(s) of record of, and shall be treated
for all purposes as the record holder(s) of, the shares
represented thereby (and such shares shall be deemed to have
been issued) immediately prior to the close of business on the
date or dates upon which this Warrant is
exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the
shares of stock so purchased shall be delivered to the holder
hereof as soon as possible and in any event within thirty (30)
days after such exercise and, unless this Warrant has been
fully exercised, a new Warrant representing the portion of the
Warrant Shares, if any, with respect to which this Warrant
shall not then have been exercised shall also be issued to the
holder hereof as soon as possible and in any event within such
thirty (30)-day period.
b.
Expiration . In the event that any portion
of this Warrant is unexercised as of the Expiration Date, such
portion of this Warrant shall automatically expire, and the
Holder shall have no rights with respect to such unexercised
portion of this Warrant.
c.
Exercise Limitation . The Company shall not
effect any exercise of this Warrant, and the Holder shall not
have the right to exercise any portion of this Warrant,
pursuant to Section 2 or otherwise, to the extent that after
giving effect to such issuance after exercise as set forth on
the applicable notice of exercise, such Holder (together with
such Holder’s Affiliates, and any other person or entity
acting as a group together with such Holder or any of such
Holder’s Affiliates), as set forth on the applicable
notice of exercise, would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For
purposes of the foregoing sentence, the number of shares of
Common Stock beneficially owned by such Holder and its
Affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which
such determination is being made, but shall exclude the number
of shares of Common Stock which would be issuable upon (A)
exercise of the remaining, nonexercised portion of this
Warrant beneficially owned by such Holder or any of its
Affiliates and (B) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company
subject to a limitation on conversion or exercise analogous to
the limitation contained herein beneficially owned by such
Holder or any of its affiliates. Except as set forth in
the preceding sentence, for purposes of this Section 2,
beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, it being acknowledged by a
Holder that the Company is not representing to such Holder
that such calculation is in compliance with Section 13(d) of
the Exchange Act and such Holder is solely responsible for any
schedules required to be filed in accordance
therewith. To the extent that the limitation
contained in this Section 2 applies, the determination of
whether this Warrant is exercisable (in relation to other
securities owned by such Holder together with any Affiliates)
and of which a portion of this Warrant is exercisable shall be
in the sole discretion of a Holder, and the submission of a
Notice of Exercise shall be deemed to be each Holder’s
determination of whether this Warrant is exercisable (in
relation to other securities owned by such Holder together
with any Affiliates) and of which portion of this Warrant is
exercisable, in each case subject to such aggregate percentage
limitation, and the Company shall have no obligation to verify
or confirm the accuracy of such
determination. In addition, a determination
as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated
thereunder. The
“ Beneficial Ownership Limitation
” shall be 4.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of
this Warrant. The Beneficial Ownership Limitation
provisions of this Section 2 may be waived by such Holder, at
the election of such Holder, upon not less than 61 days’
prior notice to the Company to change the Beneficial Ownership
Limitation to 9.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock upon exercise of this
Warrant, and the provisions of this Section 2(c) shall
continue to apply. Upon such a change by a Holder
of the Beneficial Ownership Limitation from such 4.99%
limitation to such 9.99% limitation, the Beneficial Ownership
Limitation may not be further waived by such
Holder. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 2(c) to correct this
paragraph (or any portion hereof) which may be defective or
inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The
limitations contained in this paragraph shall apply to a
successor holder of this Warrant. “
Affiliate ” means any Person that,
directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a
person, as such terms are used in and construed under Rule 144
under the Securities Act. With respect to a Holder,
any investment fund or managed account that is managed on a
discretionary basis by the same investment manager as such
purchaser will be deemed to be an Affiliate of such
Holder.
3.
Stock Fully Paid; Reservation of Shares
. All Warrant Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance pursuant to the terms and conditions herein, be fully
paid and nonassessable, and free from all taxes (other than
any taxes determined with respect to, or based upon, the
income of the person to whom such shares are issued), liens
and charges (other than liens or charges created by actions of
the holder of this Warrant or the person to whom such shares
are issued), and pre-emptive rights with respect to the issue
thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will
at all times have authorized, and reserved for the purpose of
the issue upon exercise of the purchase rights evidenced by
this Warrant, a sufficient number of shares of its Common
Stock to provide for the exercise of the rights represented by
this Warrant.
4.
Adjustment of Warrant Price and Number of Shares
. The number and kind of securities purchasable
upon the exercise of this Warrant and the Warrant Price shall
be subject to adjustment from time to time upon the occurrence
of certain events, as follows:
a.
Reclassification or Merger . In case of any
reclassification, change or conversion of securities of the
class issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a
subdivision or combination), or in case of any merger of the
Company with or into another corporation (other than a merger
with another corporation in which the Company is the acquiring
and the surviving corporation and which does not result in any
reclassification or change of outstanding securities issuable
upon exercise of this Warrant), or in case of any sale of all
or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the
case may be, shall duly execute and deliver to the holder of
this Warrant a new Warrant (in form and substance satisfactory
to the holder of this Warrant), so that the holder
of
this Warrant shall have the right to receive, at a total
purchase price not to exceed that payable upon the exercise of
the unexercised portion of this Warrant, and in lieu of the
shares of Common Stock theretofore issuable upon exercise of
this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such
reclassification, change or merger by a holder of the number
of shares of Common Stock then purchasable under this
Warrant. Such new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section
4 .
b.
Subdivision or Combination of Shares . If at
any time while this Warrant remains outstanding and unexpired
the Company shall subdivide or combine its outstanding shares
of Common Stock, the Warrant Price shall be proportionately
decreased in the case of a subdivision or increased in the
case of a combination, effective at the close of business on
the date the subdivision or combination becomes
effective.
c.
Stock Dividends . If at any time while this
Warrant is outstanding and unexpired the Company shall pay a
dividend with respect to Common Stock payable in Common Stock,
then the Warrant Price shall be adjusted, from and after the
date of determination of stockholders entitled to receive such
dividend or distribution, to that price determined by
multiplying the Warrant Price in effect immediately prior to
such date of determination by a fraction (i) the numerator of
which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend, and (ii) the
denominator of which shall be the total number of
share
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