EXHIBIT 10.13
THESE SECURITIES HAVE BEEN ISSUED PURSUANT TO EXEMPTIONS FOR NONPUBLIC OFFERINGS
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, THESE SECURITIES MAY NOT
BE RESOLD OR OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL FOR OR
SATISFACTORY TO THE ISSUER, REGISTRATION UNDER THE APPLICABLE FEDERAL OR STATE
SECURITIES LAWS IS NOT REQUIRED OR COMPLIANCE IS MADE WITH SUCH REGISTRATION
REQUIREMENTS. THIS LEGEND SHALL BE ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE
FOR THIS WARRANT.
Void after 5:00 p.m. New York Time, on _______
Warrant to Purchase _____ Shares of Common Stock.
WARRANT TO PURCHASE ______
SHARES OF COMMON STOCK
WARRANT TO PURCHASE COMMON STOCK
OF
UNIVERSAL HEIGHTS, INC.
This is to certify that, FOR VALUE RECEIVED, ______ or registered
assigns ("Holder"), is entitled to purchase, subject to the provisions of this
Warrant, from UNIVERSAL HEIGHTS, INC., a Delaware corporation ("Company"), _____
fully paid, validly issued and nonassessable shares of Common Stock, par value
$.01 per share, of the Company ("Common Stock") at the exercise price of $____
per share until ______. The number of shares of Common Stock to be received upon
the exercise of this Warrant and the price to be paid for each share of Common
Stock may be adjusted from time to time as hereinafter set forth. The shares of
Common Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "Warrant Shares," and the exercise
price of a share of Common Stock as adjusted from time to time is hereinafter
sometimes referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT. This Warrant may be exercised at any time or
from time to time until 5:00 P.M. New York time on ________, provided, however,
that if either such day is a day on which banking institutions in the State of
New York are authorized by law to close, then on the next succeeding day which
shall not be such a day. This Warrant may be exercised by presentation and
surrender hereof to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed hereto duly
executed and accompanied by payment of the Exercise Price for the number of
Warrant Shares specified in such form. As soon as practicable after each such
exercise of the Warrants, but not later than seven (7) business days from the
date of such exercise, the Company shall issue and deliver to the Holder a
certificate or certificates for the Warrant Shares issuable upon such exercise,
registered in the name of the Holder or the Holder's designee. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable thereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its office, in proper
form for exercise, together with the exercise price thereof in cash or certified
or bank check and the investment letter described below, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be physically delivered to the Holder. It shall be a
condition of the exercise of this Warrant that the Holder shall deliver to the
Company an investment letter in the form as customarily used by the Company from
time to time in connection with the exercise of non-registered options and
warrants which are issued by the Company. It is further understood that
certificates for the Warrant Shares to be issued upon exercise of this Warrant
shall contain a restrictive legend to the effect that such Warrant Shares are
restricted securities as such term is defined in Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act") and cannot be sold except in
compliance with the Act and the rules and regulations promulgated thereunder.
(b) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrants. If the Common Stock is listed on any national securities exchange,
the Company shall also list such shares on such exchange subject to notice of
issuance.
(c) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market value of a share, determined as follows:
(1) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such exchange or
listed for trading on the NASDAQ system, the current market value shall
be the last reported sale price of the Common Stock on such exchange or
system on the last business day prior to the date of exercise of this
Warrant or if no such sale is made on such day, the average closing bid
and asked prices for such day on such exchange or system; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean
of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc., on the last business day prior to the date of
the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so
reported, the current market value shall be an amount, not less than
the book value thereof as at the end of the most recent fiscal year of
the Company ending prior to the date of the exercise of the Warrant,
determined in such reasonable manner as may be prescribed by the Board
of Directors of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this Warrant to the Company at
its principal office or at the office of its stock transfer agent, if any, with
the Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants which carry the same rights upon presentation hereof at the
principal office of the Company or at the office of its stock transfer agent if
any, together with a written notice specifying the names and denominations in
which new Warrants are to be issued and signed by the Holder hereof. The term
"Warrant" as used herein includes any Warrants into which this Warrant may be
divided or exchanged. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and in the case
of loss, theft or destruction of reasonable satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed,
or mutilated shall be at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon the exercise of the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events as follows:
(1) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of
Common Stock, (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify its outstanding shares of Common Stock into a smaller number
of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be proportionately
adjusted as of the effective date of such event by multiplying such
Exercise Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding immediately following such
event and the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior thereto. For example, if the
Company declares a 2 for 1 stock distribution and the Exercise Price
immediately prior to such event was $1.00 per share, the adjusted
Exercise Price immediately after such event would be $.50 per share.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(2) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsection (1) above, the number of
Shares purchasable upon exercise of this Warrant shall simultaneously
be adjusted by multiplying the number of Shares initially issuable upon
exercise of this Warrant by the Exercise Price in effect on the date
hereof and dividing the product so obtained by the Exercise Price, as
adjusted.
(3) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at
least twenty-five cents ($.25) in such price; provided, however, that
any adjustments which by reason of this Subsection (3) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All calculations
under this Section (f) shall be made to the nearest cent or to the
nearest one-hundredth of a Share, as the case may be.
(4) Whenever the Exercise Price is adjusted, as herein
provided, the Company shall promptly cause a notice setting forth the
adjusted Exercise Price and adjusted number of Shares issuable upon
exercise of each Warrant to be mailed to the Holders, at their last
addresses appearing in the Warrant Register, and shall cause a
certified copy thereof to be mailed to its transfer agent, if any. The
Company may retain a firm of independent certified public accountants
selected by its Board of Directors (who may be the regular accountants
employed by the Company) to make any computation required by this
Section (f), and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment
(5) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this
Warrant thereafter shall become entitled to receive any shares of the
Company, other than Common Stock, thereafter the number of such other
shares so receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in Subsections (1) to (3), inclusive above.
(6) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the similar
Warrants initially issuable pursuant to this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of the foregoing Section, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional shares of Common Stock, if
any, and such other facts as shall be necessary to show the reason for and the
manner of computing such adjustment. Each such officer's certificate shall be
made available at all reasonable times for inspection by the Holder or any
holder of a Warrant executed and delivered pursuant to Section (a), and the
Company shall, forthwith after each such adjustment, mail a copy by certified
mail of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock, or (ii) if the Company shall offer to the holders of
Common Stock for subscription or purchase by them any share of any class or any
other rights, or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least 15 days prior the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record is
to be taken for the purpose of such dividend, distribution or rights, or (y)
such reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any is
to be fixed, as of which the holders of Common Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale, lease or conveyance to another corporation of
the property of the Company as an entirety, the Company shall, as a condition
precedent to such transaction, cause effective provisions to be made so that the
Holder shall have the right thereafter by exercising this Warrant at any time
prior to the expiration of the Warrant, to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section (i) shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in connection
with any such capital reorganization or reclassification, consolidation, merger,
sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for a
security of the Company other than Common Stock, any such issue shall be treated
as an issue of Common Stock covered by the provisions of Subsection (1) of
Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933
(1) No later than one (1) year from the date hereof, the
Company shall, if permitted by applicable regulation or any contractual
provisions include in the filing of any new registration statement
(other than a registration statement on Forms S-8, S-14, S-15 or any
other Form not generally available for sale of securities to the
public) ("Registration Statement") under the Act covering securities of
the Company such information as may be required to permit a public
offering of the Warrant Shares. The Company shall supply prospectuses
and other documents in order to facilitate the public sale or other
disposition of the Warrant Shares. The Company shall file any necessary
post-effective amendments to such Registration Statement and use its
best efforts to maintain the effectiveness thereof for a period of 36
months from the date of issuance of the Warrant Shares. The Company
shall bear the entire cost and expense of a registration of securities
initiated by it, under this Paragraph (1). The Holder shall, however,
bear the fees of his own counsel and any transfer taxes or underwriting
discounts or commissions applicable to the Warrant Shares sold by him.
The Company may include other securities in any such registration
statement. The Company shall do any and all other acts and things which
may be necessary or desirable to enable the Holder to consummate the
public sale or other disposition of the Warrant Shares, and furnish
indemnification in the manner as set forth in Paragraph (2)(a) of this
Section (j). The Holder shall furnish information and indemnification
as set forth in Paragraph (2)(b) of this Section (j).
Notwithstanding the foregoing, in the event that there is an
underwritten offering of the Company's securities offered pursuant to
said registration statement pursuant to the immediately preceding
paragraph j(1), the underwriter shall have the right to refuse to
permit any Warrant Shares, or to limit the amount of Warrant Shares, to
be sold by the Holder to such underwriter(s) as such underwriter(s) may
determine in its discretion, and the Holder shall refrain from selling
such remainder of its Warrant Shares covered by such registration
statement for the period of forty five (45) days following the
effective date.
(2) (a) Whenever pursuant to this Section (j) a registration statement
relating to the Warrant Shares is filed under the Act, amended or
supplemented, the Company will indemnify and hold harmless each holder
of the securities covered by such registration statement, amendment or
supplement (such holder being hereinafter called the "Distributing
Holder"), and each person, if any who controls (within the meaning of
the Act) the Distributing Holder, against any losses, claims, damages
or liabilities, joint or several, to which the Distributing Holder or
any such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any such registration statement or any preliminary prospectus or final
prospectus constituting a part thereof or any amendment or supplement
thereto, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse the
Distributing Holder and each such controlling person for any legal or
other expenses reasonable incurred by the Distributing Holder and each
controlling person for any legal or other expenses reasonable incurred
by the Distributing Holder or such controlling person or underwriter in
connection with investigating or defending any such loss, claim damage,
liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registration statement, said preliminary prospectus, said final
prospectus or said amendment or supplement in reliance upon and in
conformity with written information furnished by such Distributing
Holder for use in the preparation thereof.
(b) The Distributing Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have
signed said registration statement and such amendments and supplements
thereto, each person, if any, who controls the Company (within the
meaning of the Act) against any losses, claims, damages or liabilities
to which the Company or any such director, officer or controlling
person may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained
in said registration statement, said preliminary prospectus, said final
prospectus, or said amendment or supplement, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in said registration statement,
said preliminary prospectus, said final prospectus or said amendment or
supplement in reliance upon and in conformity with written information
furnished by such distributing Holder for use in the preparation
thereof; and will reimburse the Company or any such director, officer
or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this
Paragraph 2 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party, give the indemnifying party notice of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Paragraph 2.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in,
and, the extent that it may wish, jointly with any other indemnifying
party similarly notified to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Paragraph 2 for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(e) The Company's agreements with respect to Warrant Shares in
this Section (j) shall continue in effect regardless of the exercise or
surrender of this Warrant.
Dated: As of
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UNIVERSAL HEIGHTS, INC.
By:
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Bradley I. Meier
President
PURCHASE FORM
Dated ___________, 19__
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _________ shares of Common Stock of
Universal Heights, Inc., and hereby makes payment of __________ in payment of
the actual exercise price thereof.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
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Name (Please typewrite or print in block letters)
---------------------------
Address
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Signature
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________ hereby sells, assigns and
transfers unto
Name (Please typewrite or print in block letters)
-----------------------------
Address
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the right to purchase Common Stock of Universal Heights, Inc., represented by
this Warrant to the extent of _____ shares as to which such right is exercisable
and does hereby irrevocably constitute and appoint _________________ Attorney,
to transfer the same on the books of the Company with full power of substitution
in the premises.
Date _____________, 19__
Signature _____________________