Exhibit 10.2
THE WARRANT EVIDENCED HEREBY AND THE SECURITIES ISSUABLE HEREUNDER, ARE BEING
OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")) AND WITHOUT
REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER
THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE
SECURITIES ACT. TRANSFER OF THIS WARRANT TO, AND THE EXERCISE OF THIS
WARRANT BY OR ON BEHALF OF, A U.S. PERSON, IS PROHBITED, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER
THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION.
HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT.
REGAL ROCK, INC.
FORM OF COMMON STOCK PURCHASE WARRANT
Warrant No: ______
Original Issue Date: _______________, 2007
Void After: 11:59 P.M., _____________, 2009
This Warrant is Issued to:
_____________________________
(hereinafter called the "Holder," which term shall include the Holder's legal
representatives, heirs, successors and assigns) by Regal Rock, Inc., a Nevada
corporation (hereinafter referred to as the "Company"). This Warrant may be
transferred by the Holder only in accordance with the provisions of Section 11.
1. Exercise of Warrant. For value received and subject to the terms
and conditions hereinafter set forth, the Holder is entitled, upon surrender of
this Warrant at any time on or after ________, 2007 and on or prior to
__________, 2009 (the "Exercise Date") (with the exercise notice form annexed
hereto (the "Exercise Notice") duly executed) at the office of the Company at
3723 E. Maffeo Road, Phoenix, Arizona, USA 89050, or such other office in the
United States of which the Company shall notify the Holder hereof in writing,to
purchase from the Company, at the purchase price hereinafter specified (as
adjusted from time to time,the "Exercise Price"), __________ shares (the
"Warrant Shares") (as adjusted from time to time) of the Common Stock, $0.001
par value per share, of the Company (the "Common Stock"). The initial Exercise
Price shall be $1.00 per share.
2. Issuance of Stock Certificates. As promptly as practicable after
surrender of this Warrant and receipt of payment of the Exercise Price, the
Company shall issue and deliver to the Holder a certificate or certificates for
the shares purchased hereunder, in certificates of such denominations and in
such names as the Holder may specify.
3. Payment of Exercise Price. Payment of the Exercise Price shall be
made by check made payable to the order of the Company or wire transfer of
immediately available funds to a bank account designated by the Company.
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4. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, the number of Warrant Shares that may be acquired by the
Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall
be limited to the extent necessary to insure that, following such exercise (or
other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its affiliates and any other persons whose beneficial
ownership of Common Stock would be aggregated with the Holder's for purposes of
Section 13(d) of the Exchange Act,does not exceed 9.999% of the total number of
issued and outstanding shares of Common Stock (including for such purpose the
shares of Common Stock issuable upon such exercise). For such purposes,
beneficial ownership shall be determined in accordance with Section 13(d)of the
Exchange Act and the rules and regulations promulgated thereunder.
5. Adjustment for Dividends, Distributions, Subdivisions, Combinations,
Mergers, Consolidations or Sale of Assets.
5.1 Manner of Adjustment.
(a) Stock Dividends, Distributions or Subdivisions. In the
event the Company shall issue shares of Common Stock in a stock dividend, stock
distribution or subdivision, the Exercise Price in effect immediately before
such stock dividend, stock distribution or subdivision shall, concurrently with
the effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased and the number of shares of Common Stock purchasable
by exercise of this Warrant shall be proportionately increased.
(b) Combinations or Consolidations. In the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Exercise Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased and the number of shares of Common
Stock purchasable by exercise of this Warrant shall be proportionately
decreased.
(c) Adjustment for Reclassification, Exchange or
Substitution. In the event that the class of securities issuable upon the
exercise of this Warrant shall be changed into the same or a different number
of shares of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than any event addressed by Sections
5.1(a),5.1(b) or 5.1(d)), then and in each such event the Holder shall have the
right thereafter to exercise this Warrant for the kind and amount of shares of
stock and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of the
class of securities into which such Warrant might have been exercisable for
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(d) Adjustment for Merger, Consolidation or Sale of Assets.
In the event that the Company shall merge or consolidate with or into another
entity or sell all or substantially all of its assets, this Warrant shall
thereafter be exercisable for the kind and amount of shares of stock or other
securities or property to which a holder of the number of shares of Common
Stock of the Company deliverable upon exercise of this Warrant would have
been entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions set forth in this
Section 5 with respect to the rights and interest thereafter of the Holder
of this Warrant, to the end that the provisions set forth in this Section
5 shall thereafter be applicable, as nearly as reasonably may be, in relation
to any shares of stock or other property thereafter deliverable upon the
exercise of this Warrant.
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5.2 Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Section 5,
the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based.
5.3 Closing of Books. The Company shall at no time close its
transfer books against the transfer of any shares of Common Stock issued or
issuable upon the exercise of this Warrant in any manner which interferes
with the timely and proper issuance of such shares.
6. Covenants of the Company. During the period within which the rights
represented by this Warrant may be exercised, the Company shall at all times
have authorized and reserved for the purpose of issue upon exercise of the
rights evidenced hereby, a sufficient number of shares of the class of
securities issuable upon exercise of this Warrant to provide for the exercise
of such rights. All securities which may be issued upon the exercise of the
rights represented by this Warrant shall, upon issuance, be duly authorized,
validly issued, fully paid and non-assessable and free from all taxes, liens
and charges with respect to the issue thereof. Upon surrender for exercise,
this Warrant shall be canceled and shall not be reissued; provided, however,
that upon the partial exercise hereof a substitute Warrant of like tenor and
date representing the rights to subscribe for and purchase any such
unexercised portion hereof shall be issued.
7. No Rights as Shareholder Until Exercise. This Warrant shall not
entitle the Holder to any voting rights or any other rights as a stockholder of
the Company but upon presentation of this Warrant with the Exercise Notice
duly executed and the tender of payment of the Exercise Price at the office
of the Company pursuant to the provisions of this Warrant, the Holder shall
forthwith be deemed a stockholder of the Company in respect of the securities
for which the Holder has so subscribed and paid.
8. No Change Necessary. The form of this Warrant need not be changed
because of any adjustment in the Exercise Price or in the number of shares
issuable upon its exercise. A Warrant issued after any adjustment or any
partial exercise or upon replacement may continue to express the same
Exercise Price and the same number of shares (appropriately reduced in
the case of partial exercise) as are stated on this Warrant as initially
issued, and that Exercise Price and that number of shares shall be considered
to have been so changed as of the close of business on the date of adjustment.
9. Addresses for Notices. All notices, requests, consents and other
communications hereunder shall be in writing, either delivered in hand or
mailed by registered or certified mail, return receipt requested, or sent by
facsimile, and shall be deemed to have been duly made when delivered:
If to the Holder, to the Holder's address as shown on the books of
the Company; or
If to the Company, to the address set forth on the first page of
this Warrant.
10. Substitution. In the case this Warrant shall be mutilated, lost,
stolen or destroyed, the Company shall issue a new Warrant of like tenor and
denomination and deliver the same (a) in exchange and substitution for and upon
surrender and cancellation of any mutilated Warrant, or (b) in lieu of any
Warrant lost, stolen or destroyed, upon receipt of evidence satisfactory to
the Company of the loss, theft, or destruction of such Warrant (including,
without limitation, a reasonably detailed affidavit with respect to the
circumstances of any loss, theft or destruction), and of indemnity (or, in
the case of the initial Holder or any other institutional holder, an
indemnity agreement) satisfactory to the Company.
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11. Restrictions on Transferability; Restrictive Legends.
11.1 This Warrant and the Warrant Shares issuable hereunder shall not
be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise
disposed of, except in accordance with the provisions of Regulation
S promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to registration under the Securities Act and registered or
qualified under applicable state securities laws relating to the offer
and sale of securities, or pursuant to available exemption from
the registration requirements of the Securities Act and the registration
or qualifications requirements of all such state securities laws, and the
Company shall have received an opinion of counsel (which may be an opinion that
covers multiple or all subsequent sales) satisfactory to the Company that the
proposed sale or other disposition of such securities may be effected
without registration under the Securities Act, such counsel and such opinion
to be reasonably satisfactory to the Company.
11.2 Except as otherwise permitted by this Section 11, each
certificate for Warrant Shares issued upon exercise of this Warrant shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE
NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT")) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES
ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE
SECURITIES ACT. TRANSFER OF THESE SECURITIES IS
PROHBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM
REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT."
11.3 The Company shall, at the request of any registered holder of
Warrant Shares, exchange the certificate or certificates representing such
securities for a certificate or certificates representing the same securities
not bearing the restrictive legend required by Section 11.2, if the Warrant
Shares may be sold or transferred pursuant to the provisions of Rule 144(k)
under the Securities Act, and, in the reasonable opinion of counsel to the
Company, such restrictive legend is no longer necessary.
12. Taxes. The Company makes no representation about tax treatment to
the Holder with respect to receipt or exercise of the Warrant or acquiring,
holding or disposing of the Common Stock, and the Holder represents that the
Holder has had the opportunity to discuss such treatment with the Holder's
tax advisers.
13. Remedies. Each party stipulates that the remedies at law in the
event of any default or threatened default by the other party in the
performance or compliance with any of the terms of this Warrant are and
shall not be adequate, and that such terms may be specifically enforced by a
decree for that specific performance of any agreement contained herein or
by an injunction against a violation of any of the terms hereof or otherwise.
14. Governing Law. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of Nevada without
regard to its principles of conflicts of laws.
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15. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
Holder and the Company.
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* * *
IN WITNESS WHEREOF, the parties have caused this Warrant to be executed
this ___ day of _____________, 2007.
REGAL ROCK, INC.
By:
Eric Wildstein
President and Chief Executive Officer
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EXERCISE NOTICE
REGAL ROCK, INC.
Warrant No. ______
Original Issue Date: ______________, 2007
Ladies and Gentlemen:
(1) The undersigned hereby elects to exercise the above-referenced Warrant
with respect to ____________ shares of Common Stock. Capitalized terms used
herein and not otherwise defined herein have the respective meanings set forth
in the Warrant.
(2) The holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Warrant.
(4) Pursuant to this Exercise Notice, the Company shall deliver to the Holder
the number of Warrant Shares determined in accordance with the terms of the
Warrant.
(5) By its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that in giving effect to the exercise evidenced hereby
the Holder will not beneficially own in excess of the number of shares of
Common Stock (as determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934) permitted to be owned under Section 4 of this Warrant to
which this notice relates.
(6) By its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that (check one):
____ It is not a U.S. Person and the Warrant is not being exercised on
behalf of a U.S. person; or
____ It is providing a written opinion of counsel to the effect that the
Warrant and the Warrant Shares to be issuable upon exercise thereof pursuant to
this Exercise Notice have been registered under the Securities Act or are
exempt from registration thereunder;
HOLDER:
(Print name)
By:
Title:
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