|
Exhibit
10.52
THIS WARRANT MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS
SPECIFIED IN SECTION 13 HEREOF. NEITHER THE RIGHTS REPRESENTED BY
THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE
BEEN REGISTERED FOR OFFER OR SALE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE LAW. SUCH RIGHTS AND SHARES MAY NOT
BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN PART EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 13 HEREOF.
Warrant to Purchase
Common Stock
, a Florida corporation (the “Company”), hereby
certifies that
, the registered holder hereof, or its permitted assigns
(“Holder”), said Holder is entitled, subject to the
terms set forth below, to purchase from the Company upon surrender
of this warrant (the “Warrant”), at any time or times
on or after the Exercise Date hereof but not after 5:00 P.M.
(Eastern Standard Time) on the Expiration Date (as defined herein),
all or any part of
(
) shares, as adjusted pursuant to this Warrant (the “Warrant
Shares”), of fully paid and nonassessable Common Stock (as
defined herein) of the Company by payment of the applicable
aggregate Warrant Exercise Price (as defined herein) in lawful
money of the United States.
1.
Definitions . The following words and terms as used in this
Warrant shall have the following meanings:
(a) “Assignment
Form” shall have the meaning given to such term in
Section 13(h) of this Warrant.
(b) “Common
Stock” means (i) the Company’s common stock and
(ii) any capital stock resulting from a reclassification of
such “Common Stock.”
(c) “Company”
means
, a Florida corporation.
(d) “Convertible
Securities” means any securities issued by the Company which
are convertible into or exchangeable for, directly or indirectly,
shares of Common Stock.
(e) “Effective
Date” means the date of this Warrant shown above on the face
hereof.
(f) “Exercise
Date” means any date after the Effective Date on which notice
of exercise hereof is given by Holder.
(g) “Expiration
Date” means the date which is five (5) years after the
Effective Date.
(h) “Holder”
shall have that meaning given to such term in the introductory
paragraph of this Warrant.
(i) “Market
Price” means the fair market value of one share of Common
Stock” determined as follows: the higher of (A) the book
value thereof, as determined by any firm of independent public
accountants of recognized standing selected by the Board of
Directors, as at the last day as of which such determination shall
have been made, or (B) the fair value thereof determined in
good faith by the Board of Directors as of the date which is within
15 days of the date as of which the determination is to be made (in
determining the fair value thereof~ the Board of Directors shall
consider stock market valuations and price to earnings ratios of
comparable companies in similar industries.
(j) “Registration
Expenses” shall mean all expenses incurred by the Company in
connection with the public offering of its securities, including,
without limitation, all registration and filing fees and printing
expenses, except for the Selling Expenses (as defined
below).
(k) “Registration
Statement” shall mean a registration statement on Form S-1 or
Form S-3 filed by Company with the SEC for a public offering and
sale of securities of Company.
(l) “SEC”
means the Securities and Exchange Commission.
(m) “Securities
Act” means the Securities Act of 1933, as amended.
(n) “Selling
Expenses” shall mean all underwriting discounts and selling
commissions applicable to the sale of Warrant Shares, as well as
all expenses incurred by the Company in connection with the offer
and/or sale of the Warrant Shares which, but for the sale of such
securities, would not otherwise have been incurred, including,
without limitation, all registration and filing fees and printing
expenses, as well as related attorneys’ fees, which are
incurred as a result of a request by the Holder pursuant to any of
Sections 14(e)(iii), l4(e)(iv) and 1 4(e)(v) herein.
(o) “Subscription
Notice” shall have that meaning given to such term in
Section 2(a) of this Warrant.
(p) “Warrant”
shall have that meaning given to such term in the introductory
paragraph of this document.
(q) “Warrant
Exercise Price” shall initially be $
per share and shall be adjusted and
readjusted from time to time as provided in this Warrant
(r) “Warrant
Shares” shall have that meaning given to such term in the
introductory paragraph of this Warrant.
(s) Other
Definitional Provisions.
(i) Except as
otherwise specified herein, all references herein (A) to
any person other than the Company, shall be deemed to include
such person’s successors and permitted assigns,
(B) to the Company shall be deemed to include the
Company’s successors and (C) to any applicable law
defined or referred to herein, shall be deemed references to
such applicable law as the same may have been or may be amended
or supplemented from time to time.
(ii) When
used in this Warrant, the words “herein,”
“hereof,” and “hereunder,” and words of
similar import, shall refer to this Warrant as a whole and not
to any provision of this Warrant, and the words
“Section,” “Schedule,” and
“Exhibit” shall refer to Sections of, and Schedules
and Exhibits to, this Warrant unless otherwise
specified.
(iii) Whenever
the context so requires the neuter gender includes the masculine
or feminine, and the singular number includes the plural, and
vice versa.
2. Exercise
of Warrant .
(a) Subject to
the terms and conditions hereof, this Warrant may be exercised in
whole or in part, at any time during normal business hours on or
after the Exercise Date and prior to 5:00 p.m. (Eastern Standard
Time) on the Expiration Date. The rights represented by this
Warrant may be exercised by the holder hereof then registered on
the books of the Company, in whole or from time to time in part
(except that this Warrant shall not be exercisable as to a
fractional share), by: (i) delivery of a written notice, in
the form of the subscription notice attached as Exhibit A hereto
(the “Subscription Notice”), of such holder’s
election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased; (ii) payment to the
Company of an amount equal to the Warrant Exercise Price multiplied
by the number of Warrant Shares as to which the Warrant is being
exercised (plus any applicable issue or transfer taxes) in cash, by
wire transfer or by certified or official bank check; and
(iii) the surrender of this Warrant, properly endorsed, at the
principal office of the Company in Destin, Florida (or at such
other agency or office of the Company as the Company may designate
by notice to the Holder); provided, that if such Warrant Shares are
to be issued in any name other than that of the Holder, such
issuance shall be deemed a transfer and the provisions of
Section 13 shall be applicable. In the event of any exercise
of the rights represented by this Warrant, a certificate or
certificates for the Warrant Shares so purchased, registered in the
name of, or as directed by, the Holder, shall be delivered to, or
as directed by the Holder within a reasonable time, not exceeding
15 days after the date on which such rights shall have been so
exercised.
(b) Unless the
rights represented by this Warrant shall have expired or have been
fully exercised, the Company shall issue, within such 15 day
period, a new Warrant identical in all respects to the Warrant
exercised except (x) such new Warrant shall represent rights
to purchase the number of Warrant Shares purchasable immediately
prior to such exercise under the warrant exercised, less the number
of Warrant Shares with respect to which such original Warrant was
exercised, and (y) the Warrant Exercise Price thereof shall
be, subject to
further adjustment as
provided in this Warrant, the Warrant Exercise Price of the Warrant
exercised. The person in whose name any certificate for Warrant
Shares is issued upon exercise of this Warrant shall for all
purposes be deemed to have become the holder of record of such
Warrant Shares immediately prior to the close of business on the
date on which the Warrant was surrendered and payment of the amount
due in respect of such exercise and any applicable taxes was made,
irrespective of the date of delivery of such share certificate,
except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are properly closed,
such person shall be deemed to have become the holder of such
Warrant Shares at the opening of business on the next succeeding
date on which the stock transfer books are open.
(c) In lieu of
the Holder exercising this Warrant (or any portion hereof) for
cash, it may, in connection with such exercise, elect to satisfy
the Warrant Exercise Price by exchanging solely (x) this
Warrant (or such portion hereof) for (y) that number of
Warrant Shares equal to the product of (i) the number of
shares of Convertible Securities issuable upon such exercise of the
Warrant (or, if only a portion of this Warrant is being exercised,
issuable upon the exercise of such portion) for cash multiplied by
(ii) a fraction, (A) the numerator of which is the Market
Price per share of the Common Stock at the time of such exercise
minus the Warrant Exercise Price per share of the Convertible
Securities at the time of such exercise, and (B) the
denominator of which is the Market Price per share of the Common
Stock at the time of such exercise, such number of shares so
issuable upon such exercise to be rounded up or down to the nearest
whole number of Warrant Shares.
3. Covenants
as to Common Stock.
(a) The Company
covenants and agrees that all Warrant Shares which may be issued
upon the exercise of the rights represented by this Warrant will,
upon issuance, be validly issued, fully paid and nonassessable. The
Company further covenants and agrees that during the period within
which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient
number of shares of Common Stock to provide for the exercise of the
rights then represented by this Warrant and that the par value of
said shares will at all times be less than or equal to the
applicable Warrant Exercise Price.
(b) If any
shares of Common Stock reserved or to be reserved to provide for
the exercise of the rights then represented by this Warrant require
registration with or approval of any governmental authority under
any federal or state law before such shares may be validly issued
to the Holder, then the Company covenants that it will in good
faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
4.
Adjustment of
Warrant Exercise Price Upon Stock Splits, Dividends, Distributions
and Combinations; and Adjustment of Number of Shares
.
(a) In case the
Company shall at any time split or subdivide its outstanding shares
of Common Stock into a greater number of shares or issue a stock
dividend (including any distribution of stock without
consideration) or make a distribution with respect to outstanding
shares of Common Stock or Convertible Securities payable in Common
Stock or in Convertible Securities, the Warrant Exercise Price in
effect immediately prior to such subdivision or stock
dividend or distribution
shall be proportionately reduced and conversely, in case the
outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Warrant Exercise Price in
effect immediately prior to such combination shall be
proportionately increased, in each case, by multiplying the then
effective Warrant Exercise Price by a fraction, the numerator of
which shall be the total number of shares of Common Stock
outstanding immediately prior to such subdivision, stock dividend,
distribution or combination (determined on a fully diluted basis),
and the denominator of which shall be the total number of shares of
Common Stock, immediately after such subdivision, stock dividend,
distribution or combination (determined on a fully diluted basis),
and the product so obtained shall thereafter be the Warrant
Exercise Price. For purposes of this Warrant, “on a fully
diluted basis” means that all issued and outstanding capital
stock of the Company, including all Convertible Securities, and all
outstanding options and warrants, whether or not vested, shall be
taken into account.
(b) Upon each
adjustment of the Warrant Exercise Price as provided above in this
Section 4, the Holder shall thereafter be entitled to
purchase, at the Warrant Exercise Price resulting from such
adjustment, the number of shares (calculated to the nearest tenth
of a share) obtained by multiplying the Warrant Exercise Price in
effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment
and dividing the product thereof by the Warrant Exercise Price
immediately after such adjustment.
5.
Reorganization, Reclassification, Etc . In case of any
capital reorganization, or of any reclassification of the capital
stock of the Company (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 split-up or combination) or in case of the
consolidation or merger of the Company with or into any other
corporation (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in
the Common Stock being changed into or exchanged for stock or other
securities or property of any other person), or of the sale of the
properties and assets of the Company as, or substantially as, an
entirety to any other corporation, this Warrant shall, after such
capital reorganization, reclassification of capital stock,
consolidation, merger or sale, entitle the Holder hereof to
purchase the kind and number of shares of stock or other securities
or property of the Company or of the corporation resulting from
such consolidation or surviving such merger or to which such sale
shall be made, as the case may be, to which the holder hereof would
have been entitled if he had held the Common Stock issuable upon
the exercise hereof immediately prior to such capital
reorganization, reclassification of capital stock, consolidation,
merger or sale, and, 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 thereof (including
without limitation provisions for adjustment of the Warrant
Exercise Price and of the number of shares purchasable upon the
exercise of this Warrant) 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 the rights represented
hereby. The Company shall not effect any such consolidation, merger
or sale, unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger of the corporation
purchasing such assets shall assume by written instrument executed
and mailed or delivered to the registered holder hereof at the
address of such holder 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 purchase.
6. Notice of
Adjustment of Warrant Exercise Price
. Upon any adjustment of the Warrant
Exercise Price, then the Company shall give notice thereof to the
Holder of this Warrant, which notice shall state the Warrant
Exercise Price in effect after such adjustment and the increase, or
decrease, if any, in the number of Warrant Shares purchasable at
the Warrant Exercise Price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
7.
Computation of Adjustments . Upon
e
| 
