THIS WARRANT, AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF,
HAVE NOT BEEN FILED OR REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR WITH THE SECURITIES REGULATORY AUTHORITY OF ANY STATE, BUT ARE
BEING ISSUED PURSUANT TO CERTAIN EXEMPTIONS THEREUNDER. THIS WARRANT, AND SUCH
SHARES OF COMMON STOCK, ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE, AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION THEREUNDER OR EXEMPTION THEREFROM.
This Warrant Will Be Void On The Expiry Date
PLACEMENT AGENT'S WARRANT
To Purchase 15,000 of Shares Of Common Stock Of
EFINANCIAL DEPOT.COM, INC.
This is to certify, That FOR VALUE RECEIVED
OXFORD CAPITAL CORP.
(the "Holder")
is entitled to purchase, subject to the provisions of this Placement Agent's
Warrant (the "Warrant") from Efinancial Depot.Com, Inc. (the "Company"), a
Delaware Corporation, at any time up to and including the later of (i) the
twelve month anniversary of the effective time of the registration of the shares
in the capital stock of the Company underlying this Warrant, or (ii) February 2,
2001, (the "Expiry Date"), 15,000 shares of the Company's common stock, (the
"Common Stock") at a purchase price equal $5.00 (the "Exercise Price"). The
shares of the Common Stock deliverable upon such exercise are hereinafter
sometimes referred to as "Warrant Shares." This Warrant is the Placement Agent
Warrant referred to in Section 2.05 Debenture Purchase Agreement (the "Purchase
Agreement") entered into between the Company and Oxford Capital Corp. effective
as February 2, 2000.
1. EXERCISE OF WARRANT. This Warrant may be exercised in whole or in
part at any time, and from time to time, up to and including the Expiry Date.
If the date on which the Holder's right to purchase Common Stock expires, is a
day on which national banks in the United States of America are authorized by
law to close, then the right shall expire on the next succeeding business day
that is not such a day. The Holder shall have the following rights of
relinquishment in respect to the exercise of this Warrant:
(i) the Holder, or his or her heirs or other legal representatives to the
extent entitled to exercise the Warrant under the terms thereof, in lieu of
purchasing the entire number of shares subject to purchase thereunder, shall
have the right to relinquish all or any part of the then unexercised portion of
the Warrant (to the extent then exercisable) for a number of shares of Common
Stock, for an amount of cash or for a combination of Common Stock and cash to be
determined in accordance with the following provisions of this clause (i):
(A) The written notice of exercise of such right of relinquishment shall
state the percentage, if any, of the Appreciated Value (as defined below) that
the Holder elects to receive in cash ("Cash Percentage"), such Cash Percentage
to be in increments of 10% of such Appreciated Value up to 100% thereof;
(B) The number of shares of Common Stock, if any, issuable pursuant to such
relinquishment shall be the number of such shares, rounded to the next greater
number of full shares, as shall be equal to the quotient obtained by dividing
(A) the difference between (I) the Appreciated Value and (II) the result
obtained by multiplying the Appreciated Value and the Cash Percentage by (B) the
then current market value per share of Common Stock;
(C) The amount of cash payable pursuant to such relinquishment shall be an
amount equal to the Appreciated Value less the aggregate current market value of
the Common Stock issued pursuant to such relinquishment, if any, which cash
shall be paid by the Company subject to such conditions as are deemed advisable
to permit compliance by the Company with the withholding provisions applicable
to employers under the Code and any applicable state income tax laws;
(D) For the purpose of this clause (i), "Appreciated Value" means the
excess of (x) the aggregate current market value of the shares of Common Stock
covered by the Warrant or the portion thereof to be relinquished over (y) the
aggregate purchase price for such shares specified in such Warrant;
(ii) That such right of relinquishment may be exercised only upon receipt
by the Company of a written notice of such relinquishment which shall be dated
the date of election to make such relinquishment; and that, for the purposes of
this Plan, such date of election shall be deemed to be the date when such notice
is sent by registered or certified mail, or when receipt is acknowledged by the
Company, if mailed by other than registered or certified mail or if delivered by
hand or by any telegraphic communications equipment of the sender or otherwise
delivered; provided, that, in the event the method just described for
determining such date of election shall not be or remain consistent with the
provisions of Section 16(b) of the Exchange Act or the rules and regulations
adopted by the Commission thereunder, as presently existing or as may be
hereafter amended, which regulations exempt from the operation of Section 16(b)
of the Exchange Act in whole or in part any such relinquishment transaction,
then such date of election shall be determined by such other method consistent
with Section 16(b) of the Exchange Act ;
(iii) That the "current market value" of a share of Common Stock on a
particular date shall be deemed to be its fair market value on that date as
determined in accordance with Paragraph 3; and
(iv) That the Warrant, or any portion thereof, may be relinquished only to
the extent that (A) it is exercisable on the date written notice of
relinquishment is received by the Company, and (B) the holder of such Warrant
pays, or makes provision satisfactory to the Company for the payment of, any
taxes which the Company is obligated to collect with respect to such
relinquishment.
(b) Each Holder who is subject to the short-swing profits recapture
provisions of Section 16(b) of the Exchange Act ("Covered Holder") shall be
entitled to receive payment only in cash when Warrants are relinquished during
any window period commencing on the third business day following the Company's
release of a quarterly or annual summary statement of sales and earnings and
ending on the twelfth business day following such release ("Window Period");
provided, however, that payment shall be so made in cash only in respect of 50%
of the Warrants. A Covered Holder shall be entitled to receive payment only in
shares of Common Stock upon (a) the relinquishment of Warrants outside a Window
Period and (b) the relinquishment of Warrants during a Window Period once such
Holder has received payment in cash for the relinquishment of 50% of the
Warrants.
(c) Warrants hereunder, are exempt from the operation from Section 16(b) of
the Exchange Act or will be amended, if necessary, to permit such exemption. If
a Warrant is relinquished, such Warrant shall be deemed to have been exercised
to the extent of the number of shares of Common Stock covered by the Warrant or
part thereof which is relinquished, and no further Warrants may be granted
covering such shares of Common Stock.
(d) Neither any Warrant nor any right to relinquish the same to the Company
as contemplated by this Paragraph 1 shall be assignable or otherwise
transferable except by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code, as amended, or
the rules thereunder.
The Holder shall exercise all rights to purchase Common Stock by presenting
and surrendering this Warrant to Oxford Capital Corp. (the "Escrow Agent"), at
1013 - 17th Avenue S.W., Calgary, Alberta, T2T 0A7, with the Purchase Form
annexed hereto duly executed and accompanied by payment by cash, certified
cheque or bank order or relinquishment of Warrants at the Exercise Price for the
number of shares specified in such form. If this Warrant should be exercised or
relinquished in part only the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the right of the
holder to purchase the balance of the shares purchasable hereunder. Upon receipt
by the Escrow Agent of this Warrant, in proper form for exercise, with the
Purchase Form annexed hereto duly executed for the number of shares specified in
such form, the Holder shall be deemed to be the holder of record of the shares
of Common Stock issuable upon such exercise, notwithstanding that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Holder, unless the Company has objected in accordance with the Escrow
Agreement. As soon as practicable after each exercise of this Warrant, the
Company will deliver the shares issuable upon such exercise to the Holder.
2. ISSUANCE AND DELIVERY OF SHARES. The Company hereby represents,
warrants and agrees that at all times there shall be reserved for issuance and
delivered to the Escrow Agent the number of shares of Common Stock as shall be
required for issuance or delivery upon exercise of this Warrant.
3. 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 such fractional share, determined as
follows:
(a) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the current value
shall be the last reported sales price of the Common Stock on such exchange 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 of the closing bid and asked prices
for such day on such exchange; or
(b) If the Common Stock is not so listed or admitted to unlisted trading
privileges, the current value shall be the mean of the last reported bid and
asked prices reported by the National Association of Securities Dealers
Quotation System ("NASDAQ"), or if not so quoted on NASDAQ then by the National
Quotation Bureau, Inc., on the last business day prior to the date of the
exercise of this Warrant; or
(c) 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 value shall
be an amount, not less than book value, determined in such reasonable manner as
may be prescribed by the Company's board of directors, and supported by the
written fairness opinion of an independent, nationally-recognized stock
valuation expert.
4. TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
(a) The Holder may assign this Warrant, in whole or in part, or any
interest herein. This Warrant and the Warrant Shares have not been filed or
registered with the United States Securities and Exchange Commission or with the
securities regulatory authority of any state. This Warrant and the Warrant
Shares are subject to restrictions imposed by federal and state securities laws
and regulations on transferability and resale, and may not be transferred
assigned or resold except as permitted under the Securities Act of 1933, as
amended (the "Act"), and the applicable state securities laws, pursuant to
registration thereunder or exemption therefrom. Upon receipt by the Company of
evidence satisfactory to it that this Warrant or any portion hereof, has been
legally and validly transferred or assigned, the Company will, at the request of
the Holder, upon presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, exchange this Warrant for one or
more Warrants, in such denominations as the Holder shall specify, registered in
such name or names as the Holder shall designate. If, at the time of such
transfer or assignment, this Warrant has not been registered under the Act, then
each such transferee and assignee shall furnish the Company with evidence
satisfactory to it that such transferee or assignee is acquiring such Warrant
for his, her or its own account, for investment purposes, and not with a view
towards a distribution thereof or of the Warrant Shares issuable upon its
exercise. The term "Warrant," as used herein, includes any Warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged.
(c) 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 reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant in the case of mutilation, 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.
(d) The Company may cause any legend required under the Act and applicable
state securities laws, or advisable in the opinion of its legal counsel, to be
set forth on each Warrant.
5. 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 as the holder of this Warrant are limited to those
expressed in this Warrant, the Escrow Agreement and the Purchase Agreement.
6. ANTI-DILUTION PROVISIONS. After February 2, 2000, so long as this
Warrant is outstanding and not fully exercised, the Company shall not, without
the prior consent of the Holder, issue or sell (i) any Common Stock without
consideration or for a consideration per share less than $3.00; or (ii) issue or
sell any warrant, Warrant, right, contract, call, or other security or
instrument granting the holder thereof the right to acquire Common Stock without
consideration or for a consideration per share less than $3.00.
7. OFFICER'S CERTIFICATE. Whenever the Company shall determine the
fair market value of the Common Stock pursuant to Section 3 hereof, the Company
shall forthwith file in the custody of its Secretary at its principal office,
with its stock transfer agent and with the Escrow Agent, an officer's
certificate showing the fair market value and the date as of which it was
determined, and setting forth in reasonable detail the facts requiring such
determination and the facts, assumptions, methodology and calculations employed
in determining such value. The Company shall forthwith deliver a copy of each
such officer's certificate to the Holder, and the Company shall make all such
officer's certificates available at all reasonable times for inspection by and
copying by the Holder.
8. NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding and any portion of it shall be unexercised, (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 shares of stock of any class or any other rights or (iii) if any
capital reorganization of the Company, reclassification of the Company's capital
stock, consolidation or merger of the Company with or into another corporation,
sale, lease or transfer of all or substantially all of the Company's property
and assets 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 delivered to the Holder, at least ten days
prior to 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 record of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up.
9. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common 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 an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination), 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 or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
Company shall cause effective provision to be made so that the Holder shall have
the right thereafter, by exercising this Warrant, to purchase the kind and
amount of shares of stock and other securities and property receivable upon such
classification, capital reorganization or 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 9 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 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 or of 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 Section 6 hereof with the amount of the
consideration received upon the issue thereof being determined by the Company's
board of directors, such determination to be final and binding on the Holder.
10. SPIN-OFFS. In the event the Company spins-off a subsidiary by
distributing to the Company's stockholders as a dividend or otherwise the stock
of the subsidiary, the Company shall reserve for the life of the Warrant shares
of the subsidiary to be delivered to the holders of the Warrants upon exercise
to the same extent as if they were owners of record of the Warrant Shares on the
record date for payment of the shares of the subsidiary.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933. On or before March
31, 2000, the Company shall file a registration statement to be effective no
later than May 31, 2000, to register the issuance of the Warrant Shares under
the Securities Act of 1933, as amended, in accordance with the terms of the
Registration Rights Agreement between the Company and the Holder, dated February
2, 2000.
12. MISCELLANEOUS. All notices given under this Warrant shall be in
writing, addressed to the parties as set forth below, and shall be effective on
the earliest of (i) the date received, or (ii) if given by facsimile transmittal
on the date given if transmitted before 5:00 p.m. the recipients time, otherwise
it is effective the next day, or (iii) on the second business day after delivery
to a major international air delivery or air courier service (such as Federal
Express or Network Couriers):
If to the Purchaser:
If to the Company: Oxford Capital Corp.
Efinancial Depot.Com, Inc. C/o 1013-17th Avenue S.W.
150-1875 Century Park East; Calgary, Alberta
Century City California T2T 0A7
90067 Ph: (403) 508-5055
Fax: (403) 508-5055
With a copy that does not
With a copy that does not constitute notice to:
constitute notice to:
Ian H. Kennedy,
Clark,Wilson, Barristers & Solicitors Barrister & Solicitor
800-885 W.Georgia St. 1013 - 17th Avenue
Vancouver,Canada Calgary, Alberta
V6C 3H1 T2T 0A7
Attention: David Cowan Attn: Ian H. Kennedy
Tel: (604) 643-3178 Tel: (403) 508-5055
Fax: (604) 687-6314 Fax: (403) 508-5058
(a) This Warrant is binding on and, except for the limitations
on transfer and assignment contained in Section 4, shall enure to the benefit
of the successors in interest of the Company and the Holder, respectively.
(b) This Warrant shall be governed by, and construed in accordance
with the laws of the State of Delaware.
(c) This Warrant shall be governed by and interpreted in accordance
with the laws of the State of Delaware and the federal laws of the United States
of America; The parties agree that the courts of the State of Delaware, shall
have exclusive jurisdiction and venue for the adjudication of any civil action
between them arising out of relating to this Agreement, and hereby irrevocably
consent to such jurisdiction and venue.
EFINANCIAL DEPOT.COM, INC.
By /s/ John Huguet
-----------------
President
Dated as of day of April, 2000.
By -----------------
Secretary
PURCHASE/ RELINQUISH FORM
Date:
TO: EFinancial Depot.Com, Inc.
.
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing/relinquishing shares of Common Stock.
OXFORD CAPITAL CORP.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: -----------------------------------------------------------
Address: ---------------------------------------------------------
City, State, Zip Code: ______________________________________________
Signature: ---------------------------------------------------------
ASSIGNMENT FORM
---------------
To assign this Warrant, fill in the form below:
I or we assign and transfer this Security to
(insert assignee's social security or tax I.D. no.)
(print or type other person's name, address and zip code)
and irrevocably appoint
agent to transfer this Warrant on the books of EFinancial Depot.Com, Inc. The
agent may substitute another to act for him.
Date:, Your Signature:
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee:
NOTE: This Warrant and the Common Stock issuable upon conversion or as interest
under this Debenture were issued under Regulation S under the Securities Act of
1933, as amended, and may be transferred only as provided for in the Debenture
Purchase Agreement and in accordance with Rule 904 of Regulation S and by the
execution of the above the Assignor represents that this assignment is being
made in accordance with Rule 904 of Regulation S.