Exhibit 4.12
THIS WARRANT AND THE SECURITIES RECEIVABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION
WITH SUCH OFFER, SALE OR TRANSFER.
Warrant to Purchase
1,000,000 shares of restricted common stock(1)
Form of
Warrant to Purchase Common Stock
of
iExalt, Inc.
THIS CERTIFIES that IGNATIUS LEONARDS ("Holder") has the right to purchase
from iExalt, Inc., a Nevada corporation (the "Company"), not more than 1,000,000
fully paid and non-assessable shares of the Company's Common Stock, $.001 par
value ("Common Stock"), at the Exercise Price, at any time on or before 12:00
p.m., Houston time, on February 15, 2004.
The Holder of this Warrant agrees with the Company that this Warrant is
issued and all rights hereunder shall be held subject to all of the conditions,
limitations and provisions set forth herein.
1. Date of Issuance.
This Warrant shall be deemed to be issued on February 15, 2001. .
2. Exercise.
(a) Manner of Exercise. This Warrant may be exercised as to all or any
lesser number of full shares of Common Stock covered hereby upon surrender of
this Warrant, with the Exercise Form attached hereto duly executed, together
with the full Exercise Price (as defined in Section 3) for each share of Common
Stock as to which this Warrant is exercised, at the office of the general
counsel for the company, James W. Christian at Christian & Smith, L.L.P., 2302
Fannin, Suite 500, Houston, Texas 77002, Telephone No. 713-659-7617, Telecopy
No. 713-659-7641, or at such other office or agency as the Company may designate
in writing, by overnight mail, with an advance copy of the Exercise Form
attached as Exhibit A ("Exercise Form") by facsimile (such surrender and payment
of the Exercise Price hereinafter called the "Exercise of this Warrant").
(b) Date of Exercise. The Date of Exercise ("Date of Exercise") of this
Warrant shall be defined as the date that the advance copy of the Exercise Form
is sent by facsimile to the Company, provided that the original Warrant and
Exercise Form are received by the Company within five (5) business days
thereafter. The original Warrant and Exercise Form must be received within five
(5) business days of the Date of Exercise, or the Exercise may, at the Company's
option, be considered void. Alternatively, the Date of Exercise shall be defined
as the date the original Exercise Form is received by the Company, if Holder has
not sent advance notice by facsimile.
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(1) Subject to limitations set forth (paragraph) 4(c) herein.
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(c) Cancellation of Warrant and Delivery of Common Stock. This Warrant
shall be canceled upon its Exercise, and, within three (3) business days and no
later than twenty (20) business days after the Date of Exercise, Company shall
deliver by Federal Express or equivalent overnight delivery service Common Stock
for the number of shares purchased upon such Exercise, and if this Warrant is
not exercised in full, the Holder shall also be entitled to receive a new
Warrant or Warrants (containing terms identical to this Warrant) representing
any unexercised portion of this Warrant in addition to and along with such
Common Stock.
(d) Holder of Record. Each person in whose name any Warrant for shares of
Common Stock is issued shall, for all purposes, be deemed to have become the
Holder of record of such shares on the Date of Exercise of this Warrant,
irrespective of the date of delivery of such Warrant. Nothing in this Warrant
shall be construed as conferring upon the Holder hereof any rights as a
shareholder of the Company.
3. Payment of Warrant Exercise Price.
The Exercise Price ("Exercise Price") shall equal $0.18, except as to up
to 818,182 shares at $0.11 per share if exercised and paid on or
before six (6) months from the date hereof.
Payment of the Exercise Price shall be in cash, certified check, or
cashier's check.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is intended,
understood and acknowledged that the Common Stock issuable upon exercise of this
Warrant in a cashless exercise transaction shall be deemed to have been acquired
at the time this Warrant was issued. Moreover, it is intended, understood and
acknowledged that the holding period for the Common Stock issuable upon exercise
of this Warrant in a cashless exercise transaction shall be deemed to have
commenced on the date this Warrant was issued.
4. Transfer and Registration.
(a) Transfer Rights. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly
endorsed. This Warrant shall be canceled upon such surrender and, as soon as
practicable thereafter and within five (5) business days, the person to whom
such transfer is made shall be entitled to receive a new Warrant or Warrants as
to the portion of this Warrant transferred, and the Holder of this Warrant shall
be entitled to receive a new Warrant or Warrants as to the portion hereof
retained.
(b) Piggyback Registration Rights. The Common Stock issuable upon the
exercise of this Warrant constitute registrable securities, and the Company
hereby grants to the Holder piggyback registration rights that grant the Holder
the right to have its warrants and the common stock underlying its warrants to
be registered along with any and all registration statement(s) in order to
effectuate the registration of such securities so that the warrants and the
common stock underlying the warrants may be issued without any restrictive
legend upon the effectiveness of such registration statement(s).
(c) Stock Limitation. Holder acknowledges the execution of a 0%
Convertible Subordinated Debenture of even date in the amount of $180,000.00
(the debt), which allows Holder to convert the debt to common stock. Provided,
however, Holder agrees in no event shall his rights hereunder (and under the
debt) entitle holder hereunder or thereunder to collectively receive more than
1,000,000 shares of common stock of the company.
5. Anti-Dilution Adjustments.
(a) Stock Dividend. If the Company shall at any time declare a dividend
payable in shares of Common Stock, then the Holder hereof, upon Exercise of this
Warrant after the record date for the determination of Holders of Common Stock
entitled to receive such dividend, shall be entitled to receive upon Exercise of
this Warrant, in addition to the number of shares of Common Stock as to which
this Warrant is Exercised, such
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additional shares of Common Stock as such Holder would have received had this
Warrant been Exercised immediately prior to such record date and the Exercise
Price will be proportionately adjusted.
(b) Recapitalization or Reclassification. If the Company shall at any
time effect a recapitalization, reclassification or other similar transaction of
such character that the shares of Common Stock shall be changed into or become
exchangeable for a larger or smaller number of shares, then upon the effective
date thereof, the number of shares of Common Stock which the Holder hereof shall
be entitled to purchase upon Exercise of this Warrant shall be increased or
decreased, as the case may be, in direct proportion to the increase or decrease
in the number of shares of Common Stock by reason of such recapitalization,
reclassification or similar transaction, and the Exercise Price shall be, in the
case of an increase in the number of shares, proportionally decreased and, in
the case of decrease in the number of shares, proportionally increased. The
Company shall give the Warrant Holder the same notice it provides to holders of
Common Stock of any transaction described in this Section 5(b).
I. Distributions. If the Company shall at any time distribute to Holders
of Common Stock cash, evidences of indebtedness or other securities or assets
(other than cash dividends or distributions payable out of earned surplus or net
profits for the current or preceding year) then, in any such case, the Holder of
this Warrant shall be entitled to receive, upon exercise of this Warrant, with
respect to each share of Common Stock issuable upon such Exercise, the amount of
cash or evidences of indebtedness or other securities or assets which such
Holder would have been entitled to receive with respect to each such share of
Common Stock as a result of the happening of such event had this Warrant been
Exercised immediately prior to the record date or other date fixing shareholders
to be affected by such event (the "Determination Date") or, in lieu thereof, if
the Board of Directors of the Company should so determine at the time of such
distribution, a reduced Exercise Price determined by multiplying the Exercise
Price on the Determination Date by a fraction, the numerator of which is the
result of such Exercise Price reduced by the value of such distribution
applicable to one share of Common Stock (such value to be determined by the
Board in its discretion) and the denominator of which is such Exercise Price.
(d) Notice of Consolidation or Merger. If the Company shall at any time
consolidate or merge with any other corporation or transfer all or substantially
all of its assets, then the Company shall deliver written notice by overnight
courier to the Holder of such merger, consolidation or sale of assets at least
thirty (30) days prior to the closing of such merger, consolidation or sale of
assets and this Warrant shall terminate and expire on the day immediately prior
to the closing of such merger, consolidation or sale of assets.
(e) Exercise Price Defined. As used in this Warrant, the term "Exercise
Price" shall mean the purchase price per share specified in this Warrant until
the occurrence of an event stated in subsection (a), (b) or (c) of this Section
5 and thereafter shall mean said price as adjusted from time to time in
accordance with the provisions of said subsection. No such adjustment shall be
made unless such adjustment would change the Exercise Price at the time by $.01
or more; provided, however, that all adjustments not so made shall be deferred
and made when the aggregate thereof would change the Exercise Price at the time
by $.01 or more. No adjustment made pursuant to any provision of this Section 5
shall have the effect of increasing the total consideration payable upon
Exercise of this Warrant in respect of all the Common Stock as to which this
Warrant may be exercised.
(f) Adjustments: Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 5,
the Holder of this Warrant shall, upon Exercise of this Warrant, become entitled
to receive shares and/or other securities or assets (other than Common Stock)
then, wherever appropriate, all references herein to shares of Common Stock
shall be deemed to refer to and include such shares and/or other securities or
assets; and thereafter the number of such shares and/or other securities or
assets shall be subject to adjustment from time to time in a manner and upon
terms as nearly equivalent as practicable to the provisions of this Section 5.
6. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issuable upon the Exercise of this Warrant, but on Exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of
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Common Stock. If, on Exercise of this Warrant, the Holder hereof would be
entitled a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and the number
of shares of Common Stock issuable upon conversion shall be the next lower
number of shares.
7. Authorization, Reservation an Issuance of Common Stock.
The Company shall at all times reserve for issuance such number of
authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for Exercise and
payment of the Exercise Price of this Warrant. Issuance of this Warrant shall
constitute full authority to the Company's officers who are charged with the
duty of executing certificates to execute and issue the necessary certificates
for the Common Stock upon the exercise of this Warrant. The Company covenants
and agrees that upon Exercise of this Warrant, all shares of Common Stock
issuable upon such Exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to preemptive rights, rights of first refusal or
similar rights of any person or entity.
8. Restrictions on Transfer.
(a) Registration or Exemption Required. This Warrant and the Common
Stock issuable on Exercise hereof have not been registered under the Securities
Act of 1933, as amended, and may not be sold, transferred, pledged, hypothecated
or otherwise disposed of in the absence of registration or the availability of
an exemption from registration under said Act. All shares of Common Stock issued
upon Exercise of this Warrant shall bear an appropriate legend to such effect,
if applicable.
(b) Assignment. The Holder may not sell, transfer, assign, pledge or
otherwise dispose of this Warrant, in whole or in part.
(c) Investment Intent. The Warrant and Common Stock issuable upon
conversion are intended to be held for investment purposes and not with an
intent to distribution, as defined in the Act.
9. Benefits of this Warrant.
Nothing in this Warrant shall be construed to confer upon any person
other than the Company and the Holder of this Warrant any legal or equitable
right, remedy or claim under this Warrant and this Warrant shall be for the sole
and exclusive benefit of the Company and the Holder of this Warrant.
10. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the state of Texas, without
giving effect to conflict of law provisions thereof. Venue regarding any dispute
shall be in a Harris County District Court. Any controversy, dispute or claim
that arises out of or relates to this Agreement or a breach thereof shall be
resolved by and be subject to binding Christian mediation/arbitration. The
mediation/arbitration shall be conducted according to the laws of the State of
Texas and shall take place in Harris County, Texas.
11. Loss of Warrant.
Upon receipt by the Company of notice of the loss, theft,
destruction or mutilation of this Warrant, and upon surrender and cancellation
of this Warrant, if mutilated, the Company shall execute and deliver a new
Warrant of like tenor and date. If the holder of the Warrant faxes or delivers
an unsigned warrant along with a Warrant Exercise Form, and notifies Company at
such time that such original signed Warrant has been lost, stolen or destroyed,
Company shall issue to such holder the appropriate number of shares pursuant to
Section 3 herein.
12. Notices or Demands.
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Notices or demands pursuant to this Warrant to be given or made by the
Holder of this Warrant to or on the Company shall be sufficiently given or made
if sent either by Federal Express or other similar overnight delivery service,
or by certified or registered mail, return receipt requested, postage prepaid,
and addressed, until another address is designated in writing by the general
counsel for the Company, James W. Christian at Christian & Smith, L.L.P., 2302
Fannin, Suite 500, Houston, Texas 77002, Telephone No. 713-659-7617, Telecopy
No. 713-659-7641. Notices or demands pursuant to this Warrant to be given or
made by the Company to or on behalf of the Holder of this Warrant shall be
sufficiently given or made if sent either by Federal Express or other similar
overnight delivery service, or by certified or registered mail, return receipt
requested, postage prepaid, and addressed to Ignatius Leonards, 1103 Cowards
Creek, Friendswood, Texas 77546, until another address is designated in writing
by Holder.
IN WITNESS WHEREOF, this Warrant issued to Ignatius Leonards, 1103 Cowards
Creek, Friendswood, Texas 77546, is hereby executed and effective as of the date
set forth below.
Effective as of February 15, 2001 iExalt, Inc.
By: /s/Donald W. Sapaugh
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Print Name: DONALD W. SAPAUGH
Title: PRESIDENT
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EXHIBIT A
EXERCISE FORM
TO: iExalt, Inc.
(or any successor named company)
The undersigned hereby irrevocably exercises the right to purchase
____________ of the shares of Common Stock of IEXALT, INC., a Nevada
corporation, evidenced by the attached Warrant, and herewith makes payment of
the Exercise Price with respect to such shares in full, all in accordance with
the conditions and provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise dispose
of any of such Warrant.
The undersigned requests that stock certificates for such shares be
issued, and a warrant representing any unexercised portion hereof be issued,
pursuant to the Warrant in the name of the Registered Holder and delivered to
the undersigned at the address set forth below:
Dated:
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Signature of Registered Holder
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Name of Registered Holder (Print)
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Address
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