Attached files
file | filename |
---|---|
8-K - Creek Road Miners, Inc. | v205257_8k.htm |
EX-3.4 - Creek Road Miners, Inc. | v205257_ex3-4.htm |
EX-3.3 - Creek Road Miners, Inc. | v205257_ex3-3.htm |
EX-4.1 - Creek Road Miners, Inc. | v205257_ex4-1.htm |
EX-10.1 - Creek Road Miners, Inc. | v205257_ex10-1.htm |
EX-17.1 - Creek Road Miners, Inc. | v205257_ex17-1.htm |
EX-21.1 - Creek Road Miners, Inc. | v205257_ex21-1.htm |
NEITHER THE ISSUANCE
AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED
BY THE HOLDER), IN A
GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
(II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
Right
to Purchase ________ shares of Common Stock of GoEnergy,
Inc. (subject to adjustment as provided
herein)
|
SERIES
A COMMON STOCK PURCHASE WARRANT
No.
2010-A-___
|
Issue
Date: December __, 2010
|
GOENERGY,
INC., a corporation organized under the laws of the State of Delaware (the
“Company”), hereby
certifies that, for value received, _______________ (the “Holder”), with an address at
___________________________________, or its assigns (the “Holder”), is entitled, subject
to the terms set forth below, to purchase from the Company at any time after the
Issue Date until 5:00 p.m., E.D.T on the five (5) year anniversary of the Issue
Date (the “Expiration
Date”), up to ____________ fully paid and
non-assessable shares of Common Stock at a per share purchase price of
$0.60. The aforedescribed purchase price per share, as adjusted from
time to time as herein provided, is referred to herein as the “Purchase
Price.” The number and character of such shares of Common
Stock and the Purchase Price are subject to adjustment as provided
herein. The Company may reduce the Purchase Price for some or all of
the Warrants, temporarily or permanently, provided such reduction is
made as to all outstanding Warrants for all Holders of such
Warrants. Capitalized terms used and not otherwise defined herein
shall have the meanings set forth in that certain Subscription Agreement (the
“Subscription
Agreement”), dated as of December 6, 2010, entered into by the Company,
the Holder and the other signatories thereto.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term “Company” shall
mean GoEnergy, Inc., a Delaware corporation, and any corporation which shall
succeed or assume the obligations of GoEnergy, Inc. hereunder.
(b) The
term “Common Stock”
includes (i) the Company's Common Stock, $0.0001 par value per share, as
authorized on the date of the Subscription Agreement, and (ii) any other
securities into which or for which any of the securities described in (i) may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) The
term “Other Securities”
refers to any stock (other than Common Stock) and other securities of the
Company or any other person (corporate or otherwise) which the holder of the
Warrant at any time shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 4 hereof
or otherwise.
1
(d) The term “Warrant
Shares” shall mean the Common Stock issuable upon exercise
of this Warrant.
1. Exercise of
Warrant.
1.1. Number of Shares Issuable
upon Exercise. From and after the Issue Date through and
including the Expiration Date, the Holder shall be entitled to receive, upon
exercise of this Warrant in whole in accordance with the terms of Section 1.2
hereof or upon exercise of this Warrant in part in accordance with Section 1.3
hereof, shares of Common Stock of the Company, subject to adjustment pursuant to
Section 4
hereof and Sections 12(a) and 14(p) of
the Subscription Agreement.
1.2. Full
Exercise. This
Warrant may be exercised in full by the Holder hereof by delivery to the Company
of an original or facsimile copy of the form of subscription attached as
Exhibit A hereto (the “Subscription
Form”) duly executed by such Holder and
delivered within two (2) business day thereafter of payment, in cash,
wire transfer or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common Stock for which
this Warrant is then exercisable by the Purchase Price then in
effect. The original Warrant is not required to be surrendered to the
Company until it has been fully exercised.
1.3. Partial
Exercise. This
Warrant may be exercised in
part (but not for a fractional share) by delivery of a Subscription Form in the
manner and at the place provided in Section 1.2 hereof, except that the amount payable by the
Holder on such partial exercise shall be the amount obtained by multiplying (a) the number of
whole shares of Common Stock designated by the Holder in the Subscription Form
by (b) the Purchase Price then in effect. On any such partial
exercise, upon the written
request of the Holder, provided the Holder has
surrendered the original
Warrant, the Company, at its expense, will forthwith issue and deliver to or
upon the order of the Holder a new Warrant of like tenor, in the name of the
Holder hereof or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may request, the whole number
of shares of Common Stock for which such Warrant may still be
exercised.
1.4. Fair Market
Value. For purposes of this Warrant, the Fair Market Value of a share
of Common Stock as of a particular date (the “Determination Date”) shall
mean:
(a) If
the Company's Common Stock is traded on an exchange or on the NASDAQ
Global Market, NASDAQ Global Select Market, the NASDAQ Capital Market, the New
York Stock Exchange or the NYSE AMEX Equities, then the average of the closing sale prices of the Common Stock for
the five (5) trading days immediately prior to (but not
including) the Determination Date;
(b) If
the Company's Common Stock is not traded on an exchange or on the NASDAQ Global
Market, NASDAQ Global Select Market, the NASDAQ Capital Market, the New York
Stock Exchange or the NYSE AMEX Equities, but is traded on the OTC Bulletin
Board or in the over-the-counter market or Pink Sheets, then the average of the
closing bid and ask prices reported for the five (5) trading days immediately prior to (but not
including) the Determination Date;
(c) Except
as provided in clause (d) below and Section 3.1 hereof,
if the Company's Common Stock is not publicly traded, then as the Holder and the
Company shall mutually agree, or in the absence of such an agreement after good
faith efforts of the Company and the Holder to reach an agreement, by
arbitration in accordance with the rules then standing of the American
Arbitration Association, before a single arbitrator to be chosen from a panel of
persons qualified by education and training to pass on the matter to be decided;
or
2
(d) If
the Determination Date is the date of a liquidation, dissolution or winding up,
or any event deemed to be a liquidation, dissolution or winding up pursuant to
the Company's charter, then all amounts to be payable per share to holders of
the Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share in
respect of the Common Stock in liquidation under the charter, assuming for the
purposes of this clause (d) that all of the shares of Common Stock then
issuable upon exercise of all of the Warrants are outstanding at the
Determination Date.
1.5. Company
Acknowledgment. The Company will, at the time of the exercise
of the Warrant, upon the request of the Holder hereof, acknowledge in writing
its continuing obligation to afford to such Holder any rights to which such
Holder shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to afford
to such Holder any such rights.
1.6. Delivery of
Stock Certificates, etc. on Exercise. The Company agrees that, provided the
purchase price listed in the Subscription Form is received as specified in
Section
2 hereof, the shares of Common Stock purchased
upon exercise of this Warrant shall be deemed to be issued to the Holder hereof
as the record owner of such
shares as of the close of business on the date on which delivery of a
Subscription Form shall have occurred and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in full or
in part and the payment is made, and in any event within five (5) business days thereafter
(“Warrant Share
Delivery Date”), the Company, at its expense (including the payment
by it of any applicable issue taxes), will cause to be issued in the name
of, and delivered to, the Holder hereof, or as such Holder (upon payment by
such Holder of any applicable transfer taxes) may direct in compliance with
applicable securities laws, a certificate or certificates for the number of duly
and validly issued, fully paid and non-assessable shares of Common Stock (or
Other Securities) to which such Holder shall be entitled on such exercise, plus,
in lieu of any fractional share to which such Holder would otherwise be
entitled, cash equal to such fraction multiplied by the then Fair Market Value of one full share of
Common Stock, together with any other stock or other securities and property (including cash,
where applicable) to which such Holder is entitled upon such exercise pursuant
to Section 1 hereof or otherwise. The
Company understands that a
delay in the delivery of the Warrant Shares after the Warrant Share Delivery
Date could result in economic loss to the Holder. As compensation to
the Holder for such loss, the Company agrees to pay (as liquidated damages and
not as a penalty) to the Holder for late issuance
of Warrant Shares upon exercise of this Warrant the proportionate amount of $100
per business day after the Warrant Share Delivery Date for each $10,000 of
Purchase Price of Warrant Shares for which this Warrant is exercised which are not timely
delivered. The Company shall promptly pay any payments incurred under this
Section in immediately available funds upon demand. Furthermore, in addition to
any other remedies which may be available to the Holder, in the
event that the Company
fails for any reason to effect delivery of the Warrant Shares by the Warrant
Share Delivery Date, the Holder may revoke all or part of the relevant Warrant
exercise by delivery of a written notice to such effect to the Company,
whereupon the Company and
the Holder shall each be restored to their respective positions immediately
prior to the exercise of the relevant portion of this Warrant, except that the
liquidated damages described above shall be payable through the date notice of
revocation or rescission is given to the
Company.
3
1.7. Buy-In. In addition to any
other rights available to the Holder, if the Company fails to deliver to a
Holder the Warrant Shares as required pursuant to this Warrant, and the Holder
or a broker on the Holder’s behalf, purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by such Holder of the Warrant Shares which the Holder was entitled to
receive from the Company (a “Buy-In”), then the Company shall pay in cash to the Holder (in
addition to any remedies available to or elected by the Holder) the amount by
which (A) the Holder's total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased exceeds (B)
the aggregate Purchase
Price of the Warrant Shares required to have been delivered together with
interest thereon at a rate of 15% per annum, accruing until such amount and any
accrued interest thereon is paid in full (which amount shall be paid as
liquidated damages and not as a penalty). For purposes of illustration, if a Holder purchases shares of Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to
$10,000 of Purchase Price of Warrant Shares to have been received upon
exercise of this Warrant,
the Company shall be required to pay the Holder $1,000, plus interest. The
Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In, which shall include evidence of
the price at which such Holder had to purchase the Common Stock in an
open-market transaction or otherwise.
2. Cashless
Exercise.
(a) Payment
upon exercise may be made at the written option of the Holder either in (i)
cash, wire transfer or by certified or official bank check payable to the order
of the Company equal to the applicable aggregate Purchase Price, (ii) by
delivery of Common Stock issuable upon exercise of the Warrants in accordance
with Section (b) below or (iii) by a combination of any of the
foregoing methods, for the number of Common Stock specified in such form (as
such exercise number shall be adjusted to reflect any adjustment in the total
number of shares of Common Stock issuable to the Holder per the terms of this
Warrant) and the Holder shall thereupon be entitled to receive the number of
duly authorized, validly issued, fully-paid and non-assessable shares of Common
Stock (or Other Securities) determined as provided
herein. Notwithstanding the immediately preceding sentence, payment
upon exercise may be made in the manner described in Section 2(b) below
only with respect to Warrant Shares not included for
unrestricted public resale in an effective registration statement on the date
notice of exercise is given by the Holder.
(b) If
the Fair Market Value of one share of Common Stock is greater than the Purchase
Price (at the date of calculation as set forth below), in lieu of exercising
this Warrant for cash, the Holder may elect to receive shares equal to the value
(as determined below) of this Warrant (or the portion thereof being cancelled)
by delivery of a properly endorsed Subscription Form delivered to the Company by
any means described in Section 13 hereof, in
which event the Company shall issue to the holder a number of shares of Common
Stock 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
|
|
Y=
|
the
number of shares of Common Stock purchasable under the Warrant or, if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such
calculation)
|
|
A=
|
Fair Market
Value
|
|
B=
|
Purchase
Price (as adjusted to the date of such
calculation)
|
For
purposes of Rule 144 promulgated under the 1933 Act, it is intended, understood
and acknowledged that the Warrant Shares issued in a cashless exercise
transaction in the manner described above shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally issued pursuant to the
Subscription Agreement.
4
3. Adjustment for
Reorganization, Consolidation, Merger, etc.
3.1. Fundamental Transaction.
If, at any time while this Warrant is outstanding, (A) the Company
effects any merger or consolidation of the Company with or into
another entity, (B) the Company effects any sale of all or
substantially all of its assets in one or
a series of related transactions, (C)
any tender offer or exchange offer (whether by the
Company or another entity) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their
shares for other securities, cash or property, (D) the Company
consummates a stock purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, or spin-off) with one or
more persons or entities whereby such other persons or entities acquire more
than the 50% of the outstanding shares of Common Stock (not including any shares
of Common Stock held by such other persons or entities making or party to, or
associated or affiliated with the other persons or entities making or party to,
such stock purchase agreement or other business combination), (E) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of
the 1934 Act) is or shall become the “beneficial owner” (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate
Common Stock of the Company, or (F) the Company effects any
reclassification of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property (in any such
case, a "Fundamental
Transaction"), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that
would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder, (a) upon
exercise of this Warrant, the number of shares of Common Stock of the
successor or acquiring corporation or of the Company, if it is the
surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable upon or as a result of
such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event or (b) if the Company is
acquired in (1) a transaction where the consideration paid to the holders
of the Common Stock consists solely of cash, (2) a “Rule 13e-3 transaction” as
defined in Rule 13e-3 under the 1934 Act, or (3) a transaction involving a
person or entity not traded on a national securities exchange, the Nasdaq Global
Select Market, the Nasdaq Global Market or the Nasdaq Capital
Market, cash equal to the Black-Scholes Value (as defined
herein). For purposes of any such exercise, the
determination of the Purchase Price shall
be appropriately adjusted to apply to such Alternate
Consideration based on the amount of
Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall
apportion the Purchase Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a
Fundamental Transaction, then the Holder shall be given the same choice as to
the Alternate Consideration it receives upon any exercise of this Warrant
following such Fundamental Transaction. To the extent necessary to
effectuate the foregoing provisions, any successor to the Company or
surviving entity in such Fundamental Transaction shall issue to the Holder a
new warrant consistent with
the foregoing provisions and evidencing the
Holder's right to exercise such warrant into Alternate
Consideration. The terms of any agreement pursuant to which a
Fundamental Transaction is effected include terms requiring any such successor
or surviving entity to comply with the provisions of
this Section
3.1 and insuring that this Warrant (or any such replacement
security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction. “Black-Scholes Value” shall be
determined in accordance with the Black-Scholes Option Pricing Model obtained
from the “OV” function on Bloomberg L.P. using (i) a price per share of Common
Stock equal to the Volume Weighted Average Price of the Common Stock for the
Trading Day immediately preceding the date of consummation of the applicable
Fundamental Transaction, (ii) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the remaining term of this Warrant as
of the date of such request and (iii) an expected volatility equal to the 100
day volatility obtained from the HVT function on Bloomberg L.P. determined as of
the Trading Day immediately following the public announcement of the applicable Fundamental
Transaction.
5
3.2. Continuation of
Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this Section 3
hereof, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the Other Securities and property receivable on
the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any Other
Securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 4
hereof.
3.3 Share
Issuance. Until
the Expiration Date, if the Company shall issue any Common Stock, except for the Excepted
Issuances (as defined
in the Subscription
Agreement), prior to the
complete exercise of this Warrant for a consideration less than the Purchase
Price that would be in effect at the time of such issuance, then, and thereafter
successively upon each such issuance, the Purchase Price shall be reduced to such other lower
price for then outstanding Warrants. For purposes of this adjustment,
the issuance of any
security or debt instrument of the Company carrying the right to convert such
security or debt instrument into Common Stock or of any warrant to purchase Common Stock
shall result in an adjustment to the Purchase Price upon the issuance of the
of the above-described
security, debt instrument, warrant, right, or option if such issuance is at a price lower
than the Purchase Price in
effect upon such issuance and again at any time upon any actual, permitted,
optional, or allowed issuances of shares of Common Stock upon any actual,
permitted, optional, or allowed exercise of such conversion or purchase rights if such issuance is at a
price lower than the
Purchase Price in effect upon any actual, permitted, optional, or allowed such
issuance. Common Stock issued or issuable by the Company for no
consideration will be deemed issuable or to have been issued for $0.0001 per
share of Common Stock. The reduction of the
Purchase Price described in this Section
3.3 is in addition to the
other rights of the Holder described in the Subscription Agreement. Upon any reduction of the
Purchase Price, the number of shares of Common Stock that the Holder of
this Warrant shall thereafter, on the exercise hereof, be entitled to receive
shall be adjusted to a number determined by multiplying the number of shares of
Common Stock that would otherwise (but for the provisions of this Section 3.3) be
issuable on such exercise by a fraction of which (a) the numerator is the
Purchase Price that would otherwise (but for the provisions of this Section 3.3) be in
effect, and (b) the denominator is the Purchase Price in effect on the date of
such exercise.
4. Extraordinary Events
Regarding Common Stock. In the event that the Company shall
(a) issue additional shares of Common Stock as a dividend or other
distribution on outstanding Common Stock, (b) subdivide its outstanding
shares of Common Stock, or (c) combine its outstanding shares of the Common
Stock into a smaller number of shares of Common Stock, then, in each such event,
the Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase Price then in effect. The Purchase
Price, as so adjusted, shall be readjusted in the same manner upon the happening
of any successive event or events described in this Section 4. The
number of shares of Common Stock that the Holder of this Warrant shall
thereafter, on the exercise hereof, be entitled to receive shall be adjusted to
a number determined by multiplying the number of shares of Common Stock that
would otherwise (but for the provisions of this Section 4) be
issuable on such exercise by a fraction of which (a) the numerator is the
Purchase Price that would otherwise (but for the provisions of this Section 4) be in
effect, and (b) the denominator is the Purchase Price in effect on the date of
such exercise.
6
5. Certificate as to
Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock (or Other Securities) issuable on the exercise of the
Warrants or in the Purchase Price, the Company at its expense will promptly
cause its Chief Financial Officer or other appropriate designee to compute such
adjustment or readjustment in accordance with the terms of the Warrant and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based,
including a statement of (a) the consideration received or receivable by
the Company for any additional shares of Common Stock (or Other Securities)
issued or sold or deemed to have been issued or sold, (b) the number of
shares of Common Stock (or Other Securities) outstanding or deemed to be
outstanding, and (c) the Purchase Price and the number of shares of Common
Stock to be received upon exercise of this Warrant, in effect immediately prior
to such adjustment or readjustment and as adjusted or readjusted as provided in
this Warrant. The Company will forthwith mail a copy of each such certificate to
the Holder of the Warrant and any Warrant Agent (as defined herein) of the
Company (appointed pursuant to Section 10
hereof). Holder will be entitled to the benefit of the adjustment
regardless of the giving of such notice. The timely giving of such
notice to Holder is a material obligation of the Company.
6. Reservation of Stock, etc.
Issuable on Exercise of Warrant; Financial
Statements. The Company will at all times reserve and
keep available, solely for issuance and delivery on the exercise of the
Warrants, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of the Warrant. This Warrant entitles the
Holder hereof, upon written request, to receive copies of all financial and
other information distributed or required to be distributed to the holders of
the Company's Common Stock.
7. Assignment; Exchange of
Warrant. Subject to compliance with applicable securities
laws, this Warrant, and the rights evidenced hereby, may be transferred by any
registered holder hereof (a “Transferor”). On the surrender
for exchange of this Warrant, with the Transferor's endorsement in the form of
Exhibit B
attached hereto (the “Transferor Endorsement Form”)
and together with an opinion of counsel reasonably satisfactory to the Company
that the transfer of this Warrant will be in compliance with applicable
securities laws, the Company will issue and deliver to or on the order of the
Transferor thereof a new Warrant or Warrants of like tenor, in the name of the
Transferor and/or the transferee(s) specified in such Transferor Endorsement
Form (each a “Transferee”), calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement of
Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or destruction of this Warrant, on delivery of
an indemnity agreement or security reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense, twice only, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Maximum
Exercise. The
Holder shall not be entitled to exercise this Warrant on an exercise
date, in connection with that number of shares
of Common Stock which would be in excess of the sum of (i) the number of
shares of Common Stock beneficially owned by the Holder and its Affiliates on an exercise date, and
(ii) the number of shares of Common Stock issuable upon the exercise of this
Warrant with respect to which the determination of this limitation is being made
on an exercise date, which would result in beneficial ownership by the Holder
and its Affiliates of more than 4.99% of the
outstanding shares of
Common Stock on such date. For the purposes of the immediately
preceding sentence, beneficial ownership shall be determined in accordance with
Section 13(d) of the 1934 Act and Rule 13d-3
thereunder. Subject to the foregoing, the Holder shall not
be limited to aggregate exercises which
would result in the issuance of more than 4.99%. The
restriction described in this paragraph may be waived, in whole or in part,
upon sixty-one (61) days’ prior notice from the Holder to the Company to
increase such percentage. The Holder may decide whether to convert
the Preferred Stock or exercise this Warrant to achieve an actual 4.99% or
increase such ownership position as described above.
7
10. Warrant
Agent. The Company may, by written notice to the Holder,
appoint an agent (a “Warrant
Agent”) for the purpose of issuing Common Stock (or Other Securities) on
the exercise of this Warrant pursuant to Section 1
hereof, exchanging this Warrant pursuant to Section 7
hereof, and replacing this Warrant pursuant to Section 8
hereof, or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, shall be made at such office by such Warrant
Agent.
11. Transfer on the Company's
Books. Until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the
contrary.
12. Registration
Rights. The Holder has been granted certain registration
rights by the Company as set forth in the Subscription Agreement. The
terms of the Subscription Agreement and such registration rights are
incorporated herein by this reference.
13. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received), or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Company, to
GoEnergy, Inc., c/o Kick the Can Corp., 1010 Avenue of
the Americas, Suite 302, New York, NY 10018, Attn: Gareb Shamus, facsimile: (212) 765-5779, with
a copy by fax only to (which shall not constitute notice) Anslow & Jaclin,
LLP, 195 Route 9 South, Manalapan, NJ 07726, Attn: Joseph M. Lucosky, Esq.,
facsimile: (732) 577-1188, and (ii) if to the Holder, to the address and
facsimile number listed on the first paragraph of this Warrant, with a copy by
fax (which shall not constitute notice) only to Grushko & Mittman, P.C., 515
Rockaway Avenue, Valley Stream, New York 11581, facsimile: (212)
697-3575.
8
14. Law Governing This
Warrant. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws or of any other State. Any action
brought by either party hereto against the other concerning the transactions
contemplated by this Warrant shall be brought only in the state courts of New
York or in the federal courts located in the state and county of New
York. The parties to this Warrant hereby irrevocably waive any
objection to jurisdiction and venue of any action instituted hereunder and shall
not assert any defense based on lack of jurisdiction or venue or based upon
forum non
conveniens. The Company and the Holder waive
trial by jury. The prevailing party shall be entitled to
recover from the other party its reasonable attorney's fees and
costs. In the event that any provision of this Warrant or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with, such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any suit, action or
proceeding in connection with this Warrant or any other Transaction Document by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law.
[-Signature
Page Follows-]
9
IN WITNESS WHEREOF, the Company has
executed this Warrant as of the date first written above.
GOENERGY,
INC.
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By:
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Gareb
Shamus
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President and Chief Executive
Officer
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10
Exhibit A
FORM OF
SUBSCRIPTION
(to be
signed only on exercise of Warrant)
TO: GOENERGY,
INC.
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
___
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________
shares of the Common Stock covered by such Warrant;
or
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___
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the
maximum number of shares of Common Stock covered by such Warrant pursuant
to the cashless exercise procedure set forth in Section 2 of the
Warrant.
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The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is
$___________. Such payment takes the form of (check applicable box or
boxes):
___
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$__________
in lawful money of the United States;
and/or
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___
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the
cancellation of such portion of the attached Warrant as is exercisable for
a total of _______ shares of Common Stock (using a Fair Market Value of
$_______ per share for purposes of this calculation);
and/or
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___
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the
cancellation of such number of shares of Common Stock as is necessary, in
accordance with the formula set forth in Section 2 of the Warrant, to
exercise this Warrant with respect to the maximum number of shares of
Common Stock purchasable pursuant to the cashless exercise procedure set
forth in Section 2.
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After
application of the cashless exercise feature as described above, _____________
shares of Common Stock are required to be delivered pursuant to the instructions
below.
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to __________________________________________, whose address
is ___________________________ ____________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities Act”), or pursuant to an exemption from registration
under the Securities Act.
Dated:___________________
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(Signature
must conform to name of holder as
specified
on the face of the Warrant)
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(Address)
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11
Exhibit B
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of GOENERGY, INC. to which the within Warrant relates specified under the
headings “Percentage Transferred” and “Number Transferred,” respectively,
opposite the name(s) of such person(s) and appoints each such person Attorney to
transfer its respective right on the books of GOENERGY, INC., with full power of
substitution in the premises.
Transferees
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Percentage Transferred
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Number Transferred
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Dated: __________________,
_______
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(Signature
must conform to name of holder as specified on the face of the
warrant)
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Signed
in the presence of:
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(Name)
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(address)
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ACCEPTED
AND AGREED:
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[TRANSFEREE]
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(address)
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(Name)
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