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Exhibit
10.47
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 each computation of an adjustment in the
Warrant Exercise Price and the number of shares which may be
subscribed for and purchased upon exercise of this Warrant, the
Warrant Exercise Price shall be computed to the nearest cent (i.e.
fraction of .5 of a cent, or greater, shall be rounded to the next
highest cent) and the number of shares which may be subscribed
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