Attached files
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| 8-K - MAINBODY 8K - XZERES Corp. | mainbody.htm |
| EX-10.1 - EXH101 - XZERES Corp. | exh10_1.htm |
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS SUCH SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS IN
ACCORDANCE WITH SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
Warrant
No. ______ No.
of Shares of Common Stock: _______
WARRANT
to
Purchase Common Stock of
Cascade
Wind Corp.
a
Nevada Corporation
This Warrant certifies
that (“Purchaser”), is entitled to purchase from Cascade
Wind Corp., Inc., a Nevada corporation (the “Company”), shares
of Common Stock (or any portion thereof) at an exercise price of $1.25 per
share of Common Stock at any
time on or before ________ ___, 2013 (the “Expiration Date”), all on the
terms and conditions hereinafter provided.
Section 1. Certain Definitions.
As used in this Warrant, unless the context otherwise requires:
“Articles” shall mean
the Articles of Incorporation of the Company, as in effect from time to
time.
“Common Stock” shall
mean the Company’s authorized common stock, no par value per share.
“Exercise Price” shall
mean the exercise price per share of Common Stock set forth above, as adjusted
from time to time pursuant to Section 3 hereof.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Warrant” shall mean
this Warrant and all additional or new warrants issued upon division or
combination of, or in substitution for, this Warrant. All such additional or new
warrants shall at all times be identical as to terms and conditions and date,
except as to the number of shares of Common Stock for which they may be
exercised.
“Warrant Stock” shall
mean the shares of Common Stock purchasable by the holder of this Warrant upon
the exercise of such Warrant.
“Warrantholder” shall
mean the Purchaser, as the initial holder of this Warrant, and its nominees,
successors or assigns, including any subsequent holder of this Warrant to whom
it has been legally transferred.
Section 2. Exercise of
Warrant.
(a)At any time after the date hereof and on or
before the Expiration Date, the Purchaser may at any time and from time to time
exercise this Warrant, in whole or in part.
(b)(i) The Warrantholder shall exercise this
Warrant by means of delivering to the Company at its office identified in
Section 14 hereof (i) a written notice of exercise, including the number of
shares of Warrant Stock to be delivered pursuant to such exercise, (ii) this
Warrant and (iii) payment equal to the Exercise Price either in cash or in
accordance with Section 2(b)(ii). In the event that any exercise shall not be
for all shares of Warrant Stock purchasable hereunder, the Company shall deliver
to the Warrantholder a new Warrant registered in the name of the Warrantholder,
of like tenor to this Warrant and for the remaining shares of Warrant Stock
purchasable hereunder, within ten (10) days of any such exercise. Such notice of
exercise shall be in the Subscription Form set out at the end of this
Warrant.
(ii) In lieu of exercising this Warrant by
payment of the Exercise Price in cash, during any period of time in which there
is not a registration statement in effect for the resale by the Warrantholder of
the Warrant Stock pursuant to the Securities Act, the Warrantholder may elect to
receive shares equal to the value of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with notice of such election, in which event the Company shall issue to
the Holder hereof a number of Shares computed using the following
formula:
X =
Y(A-B)/A
Where X
-- The number
of shares of Common Stock to be issued to the holder
of this
Warrant upon cashless exercise.
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Y
--
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The
number of shares of Common Stock purchasable under this
Warrant.
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A
--
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The
fair market value of one share of the Company’s Common
Stock.
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B
--
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The
Exercise Price (as adjusted to the date of such
calculations).
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For
purposes of this Section 2(b)(ii), the fair market value of the Common Stock, if
publicly traded, shall be the five day average of the reported closing price
each day of the Common Stock for the five days immediately preceding the
exercise of this Warrant. If the Shares are not publicly traded,
their fair market value shall be the price per share that the Company could
obtain from a willing buyer for shares of Common Stock sold by the Company from
authorized but unissued shares, as such prices shall be determined by reference
to the most recent sale or issuance by the Company of Common Stock.
(c)Upon exercise of this Warrant and delivery of
the Subscription Form with proper payment relating thereto, the Company shall
cause to be executed and delivered to the Warrantholder a certificate or
certificates representing the aggregate number of fully-paid and nonassessable
shares of Common Stock issuable upon such exercise.
(d)The stock certificate or certificates for
Warrant Stock to be delivered in accordance with this Section 2 shall be in such
denominations as may be specified in said notice of exercise and shall be
registered in the name of the Warrantholder or such other name or names as shall
be designated in said notice. Such certificate or certificates shall be deemed
to have been issued and the Warrantholder or any other person so designated to
be named therein shall be deemed to have become the holder of record of such
shares, including to the extent permitted by law the right to vote such shares
or to consent or to receive notice as stockholders, as of the time said notice
is delivered to the Company as aforesaid.
(e)The Company shall pay all expenses payable in
connection with the preparation, issue and delivery of stock certificates under
this Section 2, including any transfer taxes resulting from the exercise of the
Warrant and the issuance of Warrant Stock hereunder.
(f)All shares of Warrant Stock issuable upon the
exercise of this Warrant in accordance with the terms hereof shall be validly
issued, fully paid and nonassessable, and free from all liens and other
encumbrances thereon, other than liens or other encumbrances created by the
Warrantholder.
(g)In no event shall any fractional share of
Common Stock of the Company be issued upon any exercise of this Warrant. If,
upon any exercise of this Warrant, the Warrantholder would, except as provided
in this paragraph, be entitled to receive a fractional share of Common Stock,
then the Company shall deliver in cash to such holder an amount equal to such
fractional interest.
Section 3. Adjustment of Exercise Price
and Warrant Stock.
(a)If, at any time prior to the Expiration Date,
the number of outstanding shares of Common Stock is (i) increased by a stock
dividend payable in shares of Common Stock or by a subdivision or split-up of
shares of Common Stock, or (ii) decreased by a combination of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive the benefits of such stock dividend,
subdivision, split-up, or combination, the Exercise Price shall be adjusted to a
new amount equal to the product of (I) the Exercise Price in effect on such
record date and (II) the quotient obtained by dividing (x) the number of shares
of Common Stock outstanding on such record date (without giving effect to the
event referred to in the foregoing clause (i) or (ii)), by (y) the number of
shares of Common Stock which would be outstanding immediately after the event
referred to in the foregoing clause (i) or (ii), if such event had occurred
immediately following such record date.
(b)Upon each adjustment of the Exercise Price as
provided in Section 3 (a), the Warrantholder shall thereafter be entitled to
subscribe for and purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Warrant Stock equal to the product of (i)
the number of shares of Warrant Stock existing prior to such adjustment and (ii)
the quotient obtained by dividing (I) the Exercise Price existing prior to such
adjustment by (II) the new Exercise Price resulting from such
adjustment.
(c) If the Company,
at any time while this Warrant is outstanding, shall sell or grant
any instrument or right, including but not limited to any option,
warrant, or convertible debt, entitling any person to acquire shares of Common
Stock, at an effective price per share less than the then Exercise Price (such
lower price, the “Base Exercise Price” and such issuances collectively, a
“Dilutive Convertible Issuance”), then the Exercise Price shall be reduced and
only reduced to equal the Base Exercise Price.
(d) If the
Company, at any time while this Warrant is outstanding, shall sell or grant
Common Stock at an effective price per share less than eighty percent (80%) of
the then Exercise Price (such lower price, the “Base Share Price” and such
issuances collectively, a “Dilutive Equity Issuance”), then the Exercise Price
shall be reduced and only reduced to equal one hundred and twenty-five percent
(125%) of the Base Share Price.
Section 4. Division and
Combination. This Warrant may be divided or combined with other Warrants
upon presentation at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants are
to be issued, signed by the Warrantholder or its agent or attorney. The Company
shall pay all expenses in connection with the preparation, issue and delivery of
Warrants under this Section 4, including any transfer taxes resulting from the
division or combination hereunder. The Company agrees to maintain at its
aforesaid office books for the registration of the Warrants.
Section 5. Reclassification,
Etc. In case of any reclassification or change of the outstanding Common
of the Company (other than as a result of a subdivision, combination or stock
dividend), or in case of any consolidation of the Company with, or merger of the
Company into, another corporation or other business organization (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or change of the outstanding
Common Stock of the Company) at any time prior to the Expiration Date, then, as
a condition of such reclassification, reorganization, change, consolidation or
merger, lawful provision shall be made, and duly executed documents evidencing
the same from the Company or its successor shall be delivered to the
Warrantholder, so that the Warrantholder shall have the right prior to the
Expiration Date to purchase, at a total price not to exceed that payable upon
the exercise of this Warrant, the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, reorganization,
change, consolidation or merger by a holder of the number of shares of Common
Stock of the Company which might have been purchased by the Warrantholder
immediately prior to such reclassification, reorganization, change,
consolidation or merger, in any such case appropriate provisions shall be made
with respect to the rights and interest of the Warrantholder to the end that the
provisions hereof (including provisions for the adjustment of the Exercise Price
and of the number of shares purchasable upon exercise of this Warrant) shall
thereafter be applicable in relation to any shares of stock and other securities
and property thereafter deliverable upon exercise hereof.
Section 6. Reservation and
Authorization of Capital Stock. The Company shall at all times reserve
and keep available for issuance such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants.
Section 7. Stock and Warrant
Books. The Company will not at any time, except upon dissolution,
liquidation or winding up, close its stock books or Warrant books so as to
result in preventing or delaying the exercise of any Warrant.
Section 8. Limitation of
Liability. No provisions hereof, in the absence of affirmative action by
the Warrantholder to purchase Warrant Stock hereunder, shall give rise to any
liability of the Warrantholder to pay the Exercise Price or as a stockholder of
the Company (whether such liability is asserted by the Company or creditors of
the Company).
Section 9. Registration Rights.
The Warrant Stock issuable upon exercise of this Warrant is subject to the
provisions of a certain Subscription and Registration Rights Agreement, dated
same date herewith, by and among the Company, and the Purchaser.
Section 10. Transfer. Subject to
compliance with the Securities Act and the applicable rules and regulations
promulgated thereunder, this Warrant and all rights hereunder shall be
transferable in whole or in part. Any such transfer shall be made at the office
or agency of the Company at which this Warrant is exercisable, by the registered
holder hereof in person or by its duly authorized attorney, upon surrender of
this Warrant together with the assignment hereof properly endorsed, and promptly
thereafter a new warrant shall be issued and delivered by the Company,
registered in the name of the assignee. Until registration of transfer hereof on
the books of the Company, the Company may treat the Purchaser as the owner
hereof for all purposes.
Section 11. Investment Representations;
Restrictions on Transfer of Warrant Stock. Unless a current registration
statement under the Securities Act shall be in effect with respect to the
Warrant Stock to be issued upon exercise of this Warrant, the Warrantholder, by
accepting this Warrant, covenants and agrees that, at the time of exercise
hereof, and at the time of any proposed transfer of Warrant Stock acquired upon
exercise hereof, such Warrantholder will deliver to the Company a written
statement that the securities acquired by the Warrantholder upon exercise hereof
are for the account of the Warrantholder or are being held by the Warrantholder
as trustee, investment manager, investment advisor or as any other fiduciary for
the account of the beneficial owner or owners for investment and are not
acquired with a view to, or for sale in connection with, any distribution
thereof (or any portion thereof) and with no present intention (at any such
time) of offering and distributing such securities (or any portion
thereof).
Section 12. Loss, Destruction of Warrant
Certificates. Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of any Warrant and, in the case of any
such loss, theft or destruction, upon receipt of indemnity and/or security
satisfactory to the Company or, in the case of any such mutilation, upon
surrender and cancellation of such Warrant, the Company will make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same aggregate number of
shares of Common Stock.
Section 13. Amendments. The terms
of this Warrant may be amended, and the observance of any term herein may be
waived, but only with the written consent of the Company and the
Warrantholder.
Section 14. Notices Generally.
Any notice, request, consent, other communication or delivery pursuant to the
provisions hereof shall be in writing and shall be sent by one of the following
means: (i) by registered or certified first class mail, postage prepaid, return
receipt requested; (ii) by facsimile transmission with confirmation of receipt;
(iii) by nationally recognized courier service guaranteeing overnight delivery;
or (iv) by personal delivery, and shall be properly addressed to the
Warrantholder at the last known address or facsimile number appearing on the
books of the Company, or, except as herein otherwise expressly provided, to the
Company at its principal executive office, or such other address or facsimile
number as shall have been furnished to the party giving or making such notice,
demand or delivery.
Section 15. Successors and
Assigns. This Warrant shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective permitted successors and
assigns.
Section 16. Governing Law. In all
respects, including all matters of construction, validity and performance, this
Warrant and the obligations arising hereunder shall be governed by, and
construed and enforced in accordance with the laws of the State of
Nevada.
IN WITNESS WHEREOF, the Company has
caused this Warrant to be signed in its name by its Authorized
Representative.
Dated:
_____________________
Cascade
Wind Corp., Inc.
a Nevada
Corporation
By:___________________
Its:
__________________
SUBSCRIPTION
FORM
(to be
executed only upon exercise of Warrant)
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To:Cascade
Wind Corp., Inc.
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1500
SW 1st Street, Suite 910
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Portland,
OR 97201
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[Choose one or both of the paragraphs,
as applicable]
The undersigned, pursuant to the
provisions set forth in the attached Warrant (No. __ ), hereby irrevocably
elects to purchase __________ shares of the Common Stock covered by such Warrant
and herewith makes payment of $__________, representing the full purchase price
for such shares at the price per share provided for in such
Warrant.
The undersigned, pursuant to the
provisions set forth in the attached Warrant (No. __ ), hereby irrevocably
elects to exercise the right of conversion represented by the attached Warrant
for ____ shares of Common Stock, and as payment therefor hereby directs Cascade
Wind Corp., Inc. to withhold ____ shares of Common Stock that the
undersigned would otherwise be entitled thereunder.
Dated:
____________ Name:
_______________________
Signature:
_____________________
Address:
______________________