Exhibit 4.1
NEITHER THE ISSUANCE AND SALE OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.
MONEY4GOLD
HOLDINGS, INC.
Warrant To Purchase
Common Stock
Number of Shares of Common Stock:
________
Date of Issuance: ________ ("
Issuance Date ")
MONEY4GOLD HOLDINGS, INC., a Delaware
corporation (the " Company "), hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, ________________ the
registered holder hereof or its permitted assigns (the "
Holder "), is entitled, subject to the terms set forth
below, to purchase from the Company, at the Exercise Price (as
defined below) then in effect, upon surrender of this Warrant to
Purchase Common Stock (including any Warrants to Purchase Common
Stock issued in exchange, transfer or replacement hereof, the "
Warrant "), at any time or times on or after the date
hereof, but not after 11:59 p.m., New York time, on the Expiration
Date (as defined below), _______________ fully paid nonassessable
shares of Common Stock (as defined below) (the "
Warrant Shares "). Except as otherwise defined
herein, capitalized terms in this Warrant shall have the meanings
set forth in Section 12. This Warrant is one of the
Warrants to purchase Common Stock (the " Warrants ") issued
pursuant to that certain Private Placement Memorandum, dated as of
May 27, 2008 (the " Subscription Date "), by and among the
Company and the investors (the " Investors ") referred to
therein (the " PPM ").
(a) Mechanics of
Exercise . Subject to the terms and conditions
hereof (including, without limitation, the limitations set forth in
Section 1(e)), this Warrant may be exercised by the Holder on any
day on or after the date hereof, in whole or in part, by
(i) delivery of a written notice, in the
form attached hereto as Exhibit A (the " Exercise
Notice "), of the Holder's election to exercise this Warrant
and (ii) payment to the Company of an amount equal to the
applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the "
Aggregate Exercise Price ") in cash or by wire transfer of
immediately available funds. The Holder shall not be
required to deliver the original Warrant in order to affect an
exercise hereunder. Execution and delivery of the
Exercise Notice with respect to less than all of the Warrant Shares
shall have the same effect as cancellation of the original Warrant
and issuance of a new Warrant evidencing the right to purchase the
remaining number of Warrant Shares. As soon as
practicable but in any event no later than three (3) Business Days
following the date on which the Company has received each of the
Exercise Notice and the Aggregate Exercise Price (the " Exercise
Delivery Documents "), the Company shall transmit by facsimile
an acknowledgment of confirmation of receipt of the Exercise
Delivery Documents to the Holder and the Company's transfer agent
(the " Transfer Agent "). On or before the third
(3 rd
) Business Day following the date on
which the Company has received all of the Exercise Delivery
Documents (the " Share Delivery Date "), the Company shall
(X) provided that the Transfer Agent is participating in The
Depository Trust Company (" DTC ") Fast Automated Securities
Transfer Program, upon the request of the Holder, credit such
aggregate number of Warrant Shares to which the Holder is entitled
pursuant to such exercise to the Holder's or its designee's balance
account with DTC through its Deposit Withdrawal Agent Commission
system, or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, issue and dispatch
by overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company's share register
in the name of the Holder or its designee, for the number of shares
of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to
have become the holder of record of the Warrant Shares with respect
to which this Warrant has been exercised, irrespective of the date
such Warrant Shares are credited to the Holder's DTC account or the
date of delivery of the certificates evidencing such Warrant
Shares, as the case may be. If this Warrant is submitted
in connection with any exercise pursuant to this Section 1(a) and
the number of Warrant Shares represented by this Warrant submitted
for exercise is greater than the number of Warrant Shares being
acquired upon an exercise, then the Company shall as soon as
practicable and in no event later than three Business Days after
any exercise and at its own expense, issue a new Warrant (in
accordance with Section 7(d)) representing the right to purchase
the number of Warrant Shares purchasable immediately prior to such
exercise under this Warrant, less the number of Warrant Shares with
respect to which this Warrant is exercised. No
fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common
Stock to be issued shall be rounded up to the nearest whole
number. The Company shall pay any and all taxes which
may be payable with respect to the issuance and delivery of Warrant
Shares upon exercise of this Warrant.
(b) Exercise
Price . For purposes of this Warrant, " Exercise
Price " means $0.50, subject to adjustment as provided
herein.
(c) Cashless
Exercise . If at any time after one year from the
Issuance Date there is no effective Registration Statement
registering, or no current prospectus available for, the resale of
the Warrant Shares by the Holder, then this Warrant may also be
exercised at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
|
|
(A) = the VWAP on the Trading
Day immediately preceding the date of such election;
|
|
|
(B) = the Exercise Price of this
Warrant, as adjusted; and
|
|
|
(X) = the number of Warrant Shares
issuable upon exercise of this Warrant in accordance with the terms
of this Warrant by means of a cash exercise rather than a cashless
exercise.
|
Notwithstanding anything herein to
the contrary, on the Expiration Date, this Warrant shall be
automatically exercised via cashless exercise pursuant to this
Section 1(c).
(d) Disputes
. In the case of a dispute as to the determination of
the Exercise Price or the arithmetic calculation of the Warrant
Shares, the Company shall promptly issue to the Holder the number
of Warrant Shares that are not disputed and resolve such dispute in
accordance with Section 10.
(e) Limitations on
Exercises; Beneficial Ownership . The Company shall
not effect the exercise of this Warrant, and the Holder shall not
have the right to exercise this Warrant, to the extent that after
giving effect to such exercise, such Person (together with such
Person's affiliates) would beneficially own in excess of 4.99% of
the shares of Common Stock outstanding immediately after giving
effect to such exercise. For purposes of the foregoing
sentence, the aggregate number of shares of Common Stock
beneficially owned by such Person and its affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is
being made, but shall exclude shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised portion of
this Warrant beneficially owned by such Person and its affiliates
and (ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company beneficially owned
by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended. For
purposes of this Warrant, in determining the number of outstanding
shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (1) the
Company's most recent Form 10-K, Form 10-Q, Current Report on Form
8-K or other public filing with the Securities and Exchange
Commission, as the case may be, (2) a more recent public
announcement by the Company or (3) any other notice by the Company
or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. For any reason at any time, upon the
written or oral request of the Holder, the Company shall within one
Business Day confirm orally and in writing to the Holder the number
of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or exercise of
securities of the Company, including the Warrants, by the Holder
and its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported.
2. ADJUSTMENT OF
EXERCISE PRICE AND NUMBER OF WARRANT SHARES . The
Exercise Price and the number of Warrant Shares shall be adjusted
from time to time as follows:
(a) Adjustment
upon Subdivision or Combination of Common Stock . If
the Company at any time on or after the Subscription Date
subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately
reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the
Subscription Date combines (by combination, reverse stock split or
otherwise) one or more classes of its outstanding shares of Common
Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately
decreased. Any adjustment under this Section 2(a) shall
become effective at the close of business on the date the
subdivision or combination becomes effective.
3. FUNDAMENTAL
TRANSACTIONS .
(a) Fundamental
Transactions . If, at any time while this Warrant is
outstanding there is a Fundamental Transaction, then the Holder
shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property
as it would have been entitled to receive upon the occurrence of
such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of the number of Warrant
Shares then issuable upon exercise in full of this Warrant (the
"Alternate Consideration"). For purposes of any such
exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and
the Company shall apportion the Exercise Price among the Alternate
Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate
Consideration. If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a
Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental
Transaction. At the Holder's option and request, any
successor to the Company or surviving entity in such
Fundamental
