Exhibit 10.1
Viant Capital LLC Warrant
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
COMMON STOCK PURCHASE WARRANT
1. Issuance. In consideration of good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by UpSnap, Inc., a
Nevada corporation (the "Company"), formerly known as Manu Forti Group, Inc.,
Viant Capital LLC, its registered assigns (the "Holder") is hereby granted the
right to purchase at any time, on or after the Issue Date (as defined below)
until 5:00 P.M., San Diego time, on the Expiration Date (as defined below), FIVE
HUNDRED SIXTY THOUSAND (560,000) fully paid and nonassessable shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), at an
exercise price per share (the "Exercise Price") of $0.90. This Warrant is being
issued to the Holder for professional services rendered to the Company. This
Warrant was originally issued to the Holder or the Holder's predecessor on
November 15, 2005 (the "Issue Date").
2. Exercise of Warrants.
2.1 General. -------
(a) The term of the warrant is five years from date of issue;
provided, however, that this warrant must be exercised in its entirety within 90
days of the mandatory exercise of the series B warrants that were issued by the
Company on October 14, 2005 in accordance with their terms. Such exercise shall
be effectuated by submitting to the Company (either by delivery to the Company
or by facsimile transmission as provided in Section 8 hereof) a completed and
duly executed Notice of Exercise (substantially in the form attached to this
Warrant Certificate) as provided in the Notice of Exercise (or revised by notice
given by the Company as contemplated by the Section headed "NOTICES" in the
Agreement). The date such Notice of Exercise is faxed to the Company shall be
the "Exercise Date," provided that, if such exercise represents the full
exercise of the outstanding balance of the Warrant, the Holder of this Warrant
tenders this Warrant Certificate to the Company within five (5) Trading Days
thereafter. The Notice of Exercise shall be executed by the Holder of this
Warrant and shall indicate (i) the number of shares then being purchased
pursuant to such exercise and (ii) if applicable (as provided below), whether
the exercise is a cashless exercise.
(b) The Exercise Price per share of Common Stock for the shares then
being exercised shall be payable, at the election of the Holder, in cash or by
certified or official bank check or by wire transfer in accordance with
instructions provided by the Company at the request of the Holder.
(c) Upon the appropriate payment of the Exercise Price for the
shares of Common Stock purchased, together with the surrender of this Warrant
Certificate, the Holder shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased. The Company shall
deliver such certificates representing the Warrant Shares in accordance with the
instructions of the Holder as provided in the Notice of Exercise (the
certificates delivered in such manner, the "Warrant Share Certificates") within
three (3) Trading Days (such third Trading Day, a "Warrant Share Delivery Date")
of the date the payment of the Exercise Price for the relevant Warrant Shares is
received by the Company.
(d) The Holder shall be deemed to be the holder of the shares
issuable to it in accordance with the provisions of this Section 2.1 on the
Exercise Date.
(e) The Holder may elect to exercise a portion of this Warrant
without electing to redeem the balance of this Warrant.
2.2 Certain Definitions. As used herein, each of the following terms has
the meaning set forth below, unless the context otherwise requires:
(a) "Expiration Date" means the date on which the last calendar of
the month in which the fifth anniversary of the Effective Date occurs.
3. Reservation of Shares. The Company hereby agrees that at all times during the
term of this Warrant there shall be reserved for issuance upon exercise of this
Warrant, the Reservation Percentage of the number of shares of its Common Stock
as shall be required for issuance of the Warrant Shares for the then unexercised
portion of this Warrant. For the purposes of such calculations, the Company
should assume that the outstanding portion of this Warrants were exercisable in
full at any time, without regard to any restrictions which might limit the
Holder's right to exercise any portion of this Warrant held by the Holder.
4. Mutilation or Loss of Warrant. 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) receipt of reasonably
satisfactory indemnification, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor and date and any such lost, stolen, destroyed or mutilated Warrant
shall thereupon become void.
5. Rights of the Holder. Except as set forth in this Section 5, the Holder shall
not, by virtue hereof, be entitled to any rights of a stockholder in the
Company, either at law or equity, and the rights of the Holder are limited to
those expressed in this Warrant and are not enforceable against the Company
except to the extent set forth herein. Notwithstanding the provisions of this
Warrant, the Agreement or of the other Transaction Agreements, if the Company
shall declare a dividend upon the Common Stock (whether payable out of earnings
or earned surplus or otherwise), then the Company shall pay to the Holder an
amount equal to the dividend payment which would have been paid to the Holder
had all of the Holder's unexercised Warrants outstanding on the record date for
determining the amount of dividend payments to be paid to security holders of
the Company been exercised as of the close of business on the Trading Day
immediately before such record date.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment Mechanism. If an adjustment of the Exercise Price is
required pursuant to this Section 6 (other than pursuant to Section 6.4), the
Holder shall be entitled to purchase such number of shares of Common Stock as
will cause (i) (x) the total number of shares of Common Stock Holder is entitled
to purchase pursuant to this Warrant following such adjustment, multiplied by
(y) the adjusted Exercise Price per share, to equal the result of (ii) (x) the
dollar amount of the total number of shares of Common Stock Holder is entitled
to purchase before adjustment, multiplied by (y) the total Exercise Price before
adjustment.
6.2 Capital Adjustments. In case of any stock split or reverse stock
split, stock dividend, reclassification of the Common Stock, recapitalization,
merger or consolidation (where the Company is not the surviving entity), the
provisions of this Section 6 shall be applied as if such capital adjustment
event had occurred immediately prior to the date of this Warrant and the
original Exercise Price had been fairly allocated to the stock resulting from
such capital adjustment; and in other respects the provisions of this Section
shall be applied in a fair, equitable and reasonable manner so as to give
effect, as nearly as may be, to the purposes hereof. A rights offering to
stockholders shall be deemed a stock dividend to the extent of the bargain
purchase element of the rights. The Company will not effect any consolidation or
merger, unless prior to the consummation thereof, the successor or acquiring
entity (if other than the Company) and, if an entity different from the
successor or acquiring entity, the entity whose capital stock or assets the
holders of the Common Stock of the Company are entitled to receive as a result
of such consolidation or merger assumes by written instrument the obligations
under this Warrant (including under this Section 6) and the obligations to
deliver to the holder of this Warrant such shares of stock, securities or assets
as, in accordance with the foregoing provisions, the holder may be entitled to
acquire.
7. Transfer to Comply with the Securities Act; Registration Rights.
7.1 Transferability of Warrant. Subject to applicable securities laws and
the restrictive legend indicated below, this Warrant may be transferred by a
Holder without the consent of the Issuer. If transferred pursuant to this
paragraph and pursuant to an exemption from registration under the Securities
Act of 1933, the Holder will provide the Company with evidence of the applicable
exemption, and hence this Warrant may be transferred on the books of the Issuer
by the Holder hereof in person or by duly authorized attorney, upon surrender of
this Warrant at the principal office of the Issuer, properly endorsed (by the
Holder executing an assignment in the form attached hereto) and upon payment of
any necessary transfer tax or other governmental charge imposed upon such
transfer. This Warrant is exchangeable at the principal office of the Issuer for
Warrants to purchase the same aggregate number of shares of Warrant Stock, each
new Warrant to represent the right to purchase such number of shares of Warrant
Stock as the Holder hereof shall designate at the time of such exchange. All
Warrants issued on transfers or exchanges shall be dated the Original Issue Date
and shall be identical with this Warrant except as to the number of shares of
Warrant Stock issuable pursuant thereto.
This Warrant and all certificates representing shares of Warrant Stock issued
upon exercise hereof shall be stamped or imprinted with a legend in
substantially the following form:
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
8 Notices. Any notice required or permitted hereunder shall be given in manner
provided herein:
If to Company at:
_______________________________
_______________________________
_______________________________
If to Holder at:
_______________________________
_______________________________
_______________________________
9. Supplements and Amendments; Whole Agreement. This Warrant may be amended or
supplemented only by an instrument in writing signed by the parties hereto. This
Warrant contains the full understanding of the parties hereto with respect to
the subject matter hereof and thereof and there are no representations,
warranties, agreements or understandings other than expressly contained herein
and therein.
10. Governing Law. This Warrant shall be deemed to be a contract made under the
laws of the State of California for contracts to be wholly performed in such
state and without giving effect to the principles thereof regarding the conflict
of laws. Each of the parties consents to the jurisdiction of the federal courts
whose districts encompass any part of the County of San Diego or the state
courts of the State of California sitting in the County of San Diego in
connection with any dispute arising under this Warrant and hereby waives, to the
maximum extent permitted by law, any objection, including any objection based on
forum non conveniens, to the bringing of any such proceeding in such
jurisdictions. To the extent determined by such court, the Company shall
reimburse the Holder for any reasonable legal fees and disbursements incurred by
the Buyer in enforcement of or protection of any of its rights under any of the
Transaction Agreements.
11. JURY TRIAL WAIVER. The Company and the Holder hereby waive a trial by jury
in any action, proceeding or counterclaim brought by either of the Parties
hereto against the other in respect of any matter arising out or in connection
with this Warrant.
12. Counterparts. This Warrant may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
13. Descriptive Headings. Descriptive headings of the several Sections of this
Warrant are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
the __th day of _____________, 2005.
UPSNAP, INC. (fka Manu Fort Group, Inc.)
By: ________________________________
____________________________________
(Print Name)
____________________________________
(Title)
NOTICE OF EXERCISE OF WARRANT
TO: UPSNAP, INC.
(fka Manu Forti Group, Inc.) VIA FAX: (858) 362-1441
7770 Regents Road
Suite 113-401
San Diego CA 92111
AND TO: TODD M.PITCHER VIA FAX (858) 279-1799
3435 Aldford Drive
San Diego, CA 92111
Attn: Chairman
The undersigned hereby irrevocably elects to exercise the right,
represented by the Common Stock Purchase Warrant, dated as of
_____________________, 20___ , to purchase ___________ shares of the Common
Stock, par value $0.001 per share ("Common Stock"), of MANU FORTI GROUP, INC.
and tenders herewith payment in accordance with Section 2 of said Common Stock
Purchase Warrant, as follows:
( ) CASH:$________________________________________________= (Exercise Price x
Exercise Shares)
Payment is being made by:
( ) enclosed check
( ) wire transfer
( ) other
It is the intention of the Holder to comply with the provisions of Section
2.2 of the Warrant regarding certain limits on the Holder's right to exercise
thereunder. Based on the analysis on the attached Worksheet Schedule, the Holder
believes this exercise complies with the provisions of said Section 2.2.
Nonetheless, to the extent that, pursuant to the exercise effected hereby, the
Holder would have more shares than permitted under said Section, this notice
should be amended and revised, ab initio, to refer to the exercise which would
result in the issuance of shares consistent with such provision. Any exercise
above such amount is hereby deemed void and revoked.
As contemplated by the Warrant, this Notice of Conversion is being sent by
facsimile to the telecopier number and officer indicated above.
If this Notice of Exercise represents the full exercise of the outstanding
balance of the Warrant, the Holder either (1) has previously surrendered the
Warrant to the Company or (2) will surrender (or cause to be surrendered) the
Warrant to the Company at the address indicated above by express courier within
five (5) Trading Days after delivery or facsimile transmission of this Notice of
Exercise.
The certificates representing the Warrant Shares should be transmitted by
the Company to the Holder
|_| via express courier, or
|_| by electronic transfer
after receipt of this Notice of Exercise (by facsimile transmission or
otherwise) to:
___________________________________________
___________________________________________
___________________________________________
Dated: ______________________
_____________________________
[Name of Holder]
By: _________________________