EXHIBIT 4.11
This Warrant, and the securities issuable upon the exercise of this Warrant,
have not been registered under the Securities Act of 1933, as amended (the
"Act") or applicable state law and may not be sold, transferred or otherwise
disposed of unless registered under the Act and any applicable state act or
unless the Company is satisfied that this Warrant and the underlying securities
may be transferred without registration under the Act.
July 1, 2002
CLEMENTS GOLDEN PHOENIX ENTERPRISES, INC.
Redeemable Common Stock Purchase Warrant
NO EXPIRATION DATE
FOR VALUE RECEIVED, Clements Golden Phoenix Enterprises, Inc., a Florida
corporation (the "Company"), promises to issue in the name of, and sell and
deliver to, Antonio Doria, (the "Holder"), or the Holder's registered transferee
or assignee (also the "Holder"), a certificate or certificates for an aggregate
of two hundred fifty thousand (250,000) shares (the "Shares") of common stock,
$0.0001 par value per share (the "Common Stock"), of the Company, (i) at any
time after July 1, 2002 without expiration (the "Exercise Period"), upon payment
therefore of $0.25 per Share in lawful funds of the United States of America.
1. Exercise of the Warrant. In case the Holder of this Warrant shall desire to
exercise this Warrant in whole or in part, the Holder shall surrender this
Warrant, with the form of exercise notice on the last page hereof duly executed
by the Holder, to the Company, accompanied by payment of the Exercise Price per
Warrant.
(a) This Warrant may be exercised in whole or in part but not for fractional
Shares. In case of the exercise in part only, the Company will deliver to the
Holder a new Warrant of like tenor in the name of the Holder evidencing the
right to purchase the number of Shares as to which this Warrant has not been
exercised.
(b) As used herein "Per Share Warrant Value" shall mean the difference resulting
from subtracting the Exercise Price from the bid price of one share of Common
Stock on the trading day next preceding the Date of Exercise.
(c) As used herein "Date of Exercise" shall mean the date that the advance copy
of the Form of Exercise set forth herein is sent by facsimile to the Company,
provided that the original Warrant and Form of Exercise are received by the
Company within three (3) business days. If the Warrant Holder has not sent
advance notice by facsimile, the Date of Exercise shall be the date the original
Form of Exercise is received by the Company.
1
2. Covenants of the Company. The Company hereby covenants and agrees that prior
to the expiration of this Warrant by exercise or by its terms:
(a) The Company shall at all times reserve and keep available, out of its
authorized and unissued share capital, solely for the purpose of providing for
the exercise, forthwith upon the request of the Holder of the Warrants then
outstanding and in effect, such number of shares of Common Stock, as shall, from
time to time, be sufficient for the exercise of the Warrants. The Company shall,
from time to time, in accordance with the laws of the State of Florida, increase
the authorized amount of its share capital if at any time the number of shares
of Common Stock remaining unissued and unreserved for other purposes shall not
be sufficient to permit the exercise of the Warrants then outstanding and in
effect.
(b) The Company covenants and agrees that all shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be
validly issued, fully paid and non- assessable, and free from all taxes, liens
and charges with respect to the issue thereof.
3. Loss, Theft, Destruction or Mutilation. In case this Warrant shall become
mutilated or defaced or be destroyed, lost or stolen, the Company shall execute
and deliver a new Warrant in exchange for and upon surrender and cancellation of
such mutilated or defaced Warrant or in lieu of and in substitution for such
warrant so destroyed, lost, or stolen, upon the Holder of such Warrant filing
with the Company such evidence satisfactory to it that such Warrant has been so
mutilated, defaced, destroyed, lost or stolen and of the ownership thereof by
the Holder; provided, however, that the Company shall be entitled, as a
condition to the execution and delivery of such new Warrant, to demand indemnity
satisfactory to it and payment of expenses and charges incurred in connection
with the delivery of such new Warrant, and may demand a bond from the Holder.
Any Warrant so surrendered to the Company shall be canceled.
4. Record Owner. At the time of the surrender of this Warrant, together with the
form of subscription properly executed and payment of the Exercise Price, the
person exercising this Warrant shall be deemed to be the Holder of record of the
Common Stock deliverable upon such exercise, in whole or in part,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such securities shall not then be
actually delivered to such person.
5. Mailing of Notices, etc. All notices and other communications from the
Company to the Holder of this Warrant shall be mailed by first-class registered
or certified mail, return receipt requested, potage prepaid, to the Holder at
the address set forth in the records of the Company, or to such other address
furnished to the Company in writing from time to time by the Holder of this
Warrant.
6. Registration Under the Securities Act of 1933, as amended. Neither this
Warrant nor the Shares underlying it have been registered under the Securities
Act of 1933, as amended (the "Act"), nor does any obligation by the Company
exist to register this warrant nor the Shares underlying it.
2
Unless and until registered under the Act, this Warrant and all replacement
Warrants shall bear the following legend:
This Warrant, and the securities issuable upon the exercise of this Warrant,
have not been registered under the Securities Act of 1933, as amended (the
"Act") or applicable state law and may not be sold, transferred or otherwise
disposed of unless registered under the Act and any applicable state act or
unless the Company is satisfied that this Warrant and the underling securities
may be transferred without registration under the Act.
The Shares issuable upon exercise of this Warrant shall be Rule 144 restricted
shares (the "Restricted Securities").
7. Antidilution Provision. The Exercise Price in effect from time to time shall
be, subject to adjustment in accordance with the provisions of this Section 7.
(a) Adjustments for Stock Splits and Combinations. If the Company shall at any
time or from time to time after the date hereof, effect a stock split of the
outstanding Common Stock, the applicable Exercise Price in effect immediately
prior to the stock split shall not be proportionately decreased. However, if the
Company shall at any time or from time to time after the date hereof, combine
the outstanding shares of Common Stock, the applicable Exercise Price in effect
immediately prior to the combination shall be proportionately increased. Any
adjustments under this Section 7(a) shall be effective at the close of business
on the date the combination occurs.
(b) Adjustments for Certain Dividends and Distributions. If the Company shall at
any time or from time after the date hereof, make or issue or set a record date
for the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in shares of Common Stock, then, and in each
event, the applicable Exercise Price in effect immediately prior to such event
shall be decreased as of the time of such issuance or, in the event such a
record date shall have been fixed, as of the close of business on such record
date, by multiplying, as applicable, the applicable Exercise Price then in
effect by a fraction;
(i) the numerator of which shall be the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date; and
(ii) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date plus the number of shares of Common
Stock issuable in payment of such dividend or distribution.
(c) Adjustment for Other Dividends and Distributions. If the Company shall at
any time or from time to time after the date hereof, make or issue or set a
record date for the determination of holders of Common Stock entitled to receive
a dividend or other distribution payable in other than shares of Common Stock,
then, and in each event, an appropriate revision to the Exercise Price shall be
made
3
and provision shall be made (by adjustments of the Exercise Price or otherwise)
so that the holder of this Warrant shall receive upon exercise thereof, in
addition to the number of shares of Common Stock receivable thereon, the number
of securities of the Company which they would have received had this Warrant
been exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date hereof, retained such
securities (together with any distributions payable thereon during such period),
giving application to all adjustments called for during such period under this
Section 7(c) with respect to the rights of the holders of the Warrant.
(d) Adjustments for Reclassification, Exchange or Substitution. If the Common
Stock issuable upon exercise of this Warrant at any time or from time to time
after the date hereof shall be changed into the same or different number of
shares of any class or classes of stock, whether by reclassification, exchange,
substitution or otherwise (other than by way of a stock split or combination of
shares or stock dividends provided for in Sections 7(a), (b) and (c), or a
reorganization, merger, consolidation, or sale of assets provided for in Section
7(e), then, and in each event, an appropriate revision to the Exercise Price
shall by made and provisions shall be made (by adjustments of the Exercise Price
of otherwise) so that the holder of this Warrant shall have the right thereafter
to exercise such Warrant into the kind and amount of shares of stock and other
securities receivable upon reclassification, exchange, substitution or other
change, by holders of the number of shares of Common Stock into which such
Warrant might have been exercised immediately prior to such reclassification,
exchange, substitution or other change, all subject to further adjustment as
provided herein.
(e) Adjustments for Reorganization, Merger, Consolidation or Sales of Assets. If
at any time or from time to time after the date hereof there shall be a capital
reorganization of the Company (other than by way of a stock split or combination
of shares or stock dividends or distributions provided for in Section 7(a), (b),
and (c), or a reclassification, exchange or substitution of shares provided for
in Section 7(d), or a merger or consolidation of the Company with or into
another corporation, or the sale of all or substantially all of the Company's
properties or assets to any other person, then as a part of such reorganization,
merger, consolidation, or sale, an appropriate revision to the Exercise Price
shall be made and provision shall be made (by adjustments of the Exercise Price
or otherwise) so that the holder of this Warrant shall have the right thereafter
to convert this Warrant into the kind and amount of shares of stock and other
securities or property of the Company or any successor corporation resulting
from such reorganization, merger, consolidation, or sale, to which a holder of
Common Stock deliverable upon conversion of such shares would have been entitled
upon such reorganization, merger, consolidation, or sale, to which a holder of
Common Stock deliverable upon conversion of such shares would have been entitled
upon such reorganization, merger, consolidation, or sale. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 7(e) with respect to the rights of the holders of this Warrant
after the reorganization, merger, consolidation, or sale to the end that the
provisions of this Section 7(e) (including any adjustment in the applicable
conversion ratio then in effect and the number of shares of stock or other
securities deliverable upon conversion of this Warrant) shall be applied after
that event in as nearly an equivalent manner as may be practicable.
8. Laws of the State of Florida. This Warrant shall be governed by, interpreted
under and construed in all respects in accordance with, the laws of the State of
Florida, irrespective of the place of domicile or residence of any party.
4
9. Entire Agreement and Modification. The Company and the Holder of this Warrant
hereby represent and warrant that this Warrant is intended to and does contain
and embody all of the understandings and agreements, both written and oral, of
the parties hereto with respect to the subject matter of this Warrant, and that
there exists no oral agreement or understanding, express or implied, whereby the
absolute, final and unconditional character and nature of this Warrant shall be
in any way invalidated, empowered or affected. A modification or waiver of any
of the terms, conditions or provisions of this Warrant shall be effective only
if made in writing and executed with the same formality as this Warrant.
5
FORM OF EXERCISE
The undersigned hereby irrevocably elects to exercise the purchase rights
represented by this Warrant for, and to purchase thereunder, Shares of Common
Stock, $0.0001 par value per share, of Clements Golden Phoenix Enterprises,
Inc., and herewith makes payment of $ per Share, or a total of $ therefore, and
request that such Shares be issued to:
(print name)
- ---------------------------------
(address)
- ---------------------------------
(social security number)
Dated:
(signature must conform in all respects to name of Holder as specified on the
face of this Warrant)
6
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
the right represented by this Warrant to Shares of Common Stock, $0.0001 par
value per Share of Clements Golden Phoenix Enterprises, Inc. to which this
Warrant relates, and appoints , attorney to transfer said right on the books of
the Company with full power of substitution in the premises.
Dated:
(signature must conform in all respects to name of Holder as specified on the
face of this Warrant)
7
IN WITNESS WHEREOF, the Company, by its duly authorized officer, has
executed this Warrant this 28 day of August 2001.
Attest: Clements Golden Phoenix Enterprises, Inc.
Ronald Puglise, Jr. By:/s/ Joseph R. Rizzuti
- ------------------------- ------------------------------------------
Joseph R. Rizzuti, Chairman and COO
8