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Exhibit 4.5
NEITHER THE SECURITY EVIDENCED BY THIS, WARRANT NOR THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACT (COLLECTIVELY, THE
"SECURITIES LAWS"). THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS THE SECURITIES (I) ARE
REGISTERED UNDER THE SECURITIES LAWS OR (II) ARE EXEMPT FROM REGISTRATION UNDER
THE SECURITIES LAWS AND THE COMPANY IS PROVIDED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No. WARRANT TO PURCHASE ___________
ISSUED: SHARES OF COMMON STOCK
HOLDER:
GLOBE-1, INCORPORATED
COMMON STOCK PURCHASE WARRANT
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THIS IS TO CERTIFY that, for value received and subject to the terms and
conditions of this Warrant, the person whose name appears as holder above, or
such other person to whom this Warrant may be transferred pursuant to Section 6
of this Warrant (the "Holder"), is entitled, at any time before the Termination
Time as defined in Section 5 (the "Exercise Period"), to subscribe for and
purchase upon exercise of this Warrant ( ) fully paid and nonassessable shares
of Common Stock (the "Warrant Stock") of Globe-1, Incorporated, a Washington
corporation (the "Company"), at an exercise price per share of $.92 (the "Unit
Price").
This Warrant is subject to the following additional terms and conditions:
1. Issuance of Warrant. This Warrant is issued in connection with the
Company's Series A financing. Holder has paid $.001 per share in exchange for
this Warrant.
2. Method of Exercise.
(a) This Warrant may be exercised in whole at any time or from time
to time in part, but not as to a fractional share of Warrant Stock, by
delivering to the Company during the Exercise Period (i) the attached form of
"Election to Purchase," duly completed and executed by the Holder, (ii) this
Warrant and (iii) payment of the Unit Price for each share of Warrant Stock for
which the Warrant is exercised in cash or by certified or official bank check
payable to the order of the Company or by wire transfer of immediately available
funds to the account of the Company. At the option of the Holder, in lieu of
paying the Unit Price, the Holder may deliver Warrants to the Company for
cancellation and receive shares of Warrant Stock in
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accordance with the following formula: in exchange for each share of Warrant
Stock issuable on exercise of each Warrant the Holder delivers for cancellation,
such Holder shall receive a fractional share of Warrant Stock, such fraction to
have a numerator equal to the Fair Market Value per share of Warrant Stock at
such time minus the Unit Price per share of Warrant Stock at such time, and a
denominator equal to the Fair Market Value per share of Warrant Stock at such
time.
(b) For purposes of clause (a) of this Section 2, the "Fair Market
Value" per share of the Warrant Stock means: (A) the average of the closing
prices of the Company's common stock (the "Common Stock") as quoted by NASDAQ or
listed on any exchange, whichever is applicable, as published in the Western
Edition of The Wall Street Journal, for the five (5) trading days prior to the
date of the Holder's election hereunder or (B) if applicable at the time of or
in connection with the exercise under clause (a) of this Section 2, the gross
sales price of one share of the Company's Common Stock pursuant to a registered
public offering or that amount which shareholders of the Company will receive
for each share of the Company's Common Stock pursuant to a merger,
reorganization or sale of assets. If the Company's Common Stock is not quoted by
NASDAQ or listed on an exchange, the "Fair Market Value" of the Warrant Stock
shall be the price at which a willing buyer would buy and a willing seller would
sell the Warrant Stock on the date of exercise of the warrant as agreed to by
the Holder and the Company. If the Holder and the Company cannot agree on the
Fair Market Value within ten (10) business days of the Company's receipt of the
Holder's Election to Purchase, then the Fair Market Value shall be determined by
an independent appraiser selected by the Company and reasonably acceptable to
the Holder. The cost of the appraisal shall be divided equally between the
Company and the Holder.
3. Delivery of Stock Certificates. Within a reasonable time after the
exercise of this Warrant (in full or in part), the Company at its expense
(except for the payment of any applicable issue taxes) shall cause to be issued
in the name of and deliver to the Holder (a) a certificate for the number of
fully paid and nonassessable shares of Warrant Stock to which the Holder shall
be entitled upon such exercise and (b) unless this Warrant has expired, a new
Warrant representing the number of shares of Warrant Stock, if any, with respect
to which this Warrant shall not have been exercised. The Holder shall for all
purposes be deemed to have become the holder of record of such shares of Warrant
Stock on the date on which this Warrant is surrendered and payment of the
Warrant Price is made, irrespective of the date of delivery of the certificate
representing the Warrant Stock; provided, that, if the date of such surrender
and payment is a date on which the stock transfer books of the Company are
closed, then such person shall be deemed to have become the holder of record of
such shares of Warrant Stock at the close of business on the next succeeding
date on which the stock transfer books are open.
4. Covenants as to Warrant Stock . The Company covenants and agrees that
all shares of Warrant Stock issued pursuant to the terms of this Warrant (the
"Reserved Shares") will, upon their issuance, be validly issued and outstanding,
fully paid and nonassessable. The Company further covenants and agrees that the
Company will at all times have authorized and reserved a sufficient number of
the Reserved Shares to provide for the exercise of the rights represented by
this Warrant.
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5. Vesting and Termination.
(a) This Warrant is fully vested and is exercisable from the date of
issuance until the close of business on .
(b) The date and time of termination of this Warrant as provided in
this Section 5 shall be referred to herein as the "Termination Time."
6. Restrictions on Transfer. This Warrant and the Warrant Stock may be
transferred, provided that: (a) such transfer is registered under the Securities
Act and any applicable state securities or blue sky laws, (b) the Company has
received a legal opinion from counsel in a form reasonably satisfactory to the
Company to the effect that the transfer is exempt from the prospectus delivery
and registration requirements of the Securities Act and any applicable state
securities and blue sky laws or (c) the Company otherwise satisfies itself that
such transfer is exempt from registration.
7. Legend. A legend setting forth or referring to the above restrictions
shall be placed on this Warrant, any replacement hereof and any certificate
representing a security issued pursuant to the exercise of this Warrant and a
stop transfer restriction or order may be placed on the books of the Company and
with any transfer agent until such securities may be legally sold or otherwise
transferred.
8. Adjustment of Unit Price and Number of Shares.
(a) In case the Company shall at any time subdivide its outstanding
shares of Warrant Stock into a greater number of shares, the Unit Price in
effect immediately prior to such subdivision shall be proportionately reduced
(and the number of shares of Warrant Stock for which this Warrant shall be
exercisable shall be increased in inverse proportion to such reduction), and
conversely, in case the outstanding shares of Warrant Stock of the Company shall
be combined into a smaller number of shares, the Unit Price in effect
immediately prior to such combination shall be proportionately increased (and
the number of shares of Warrant Stock for which this Warrant shall be
exercisable shall be decreased in inverse proportion to such increase). If any
event occurs as to which the provisions of this subparagraph (a) are not
strictly applicable but the failure to make any adjustment would not fairly
protect the purchase rights represented by this Warrant in accordance with the
essential intent and principles hereof, then, in each such case, the Board of
Directors of the Company shall have the sole and exclusive discretion to make
such adjustment, if any, on a basis consistent with the essential intent and
principles established in this subparagraph (a) necessary to preserve, without
dilution, the purchase rights represented by this Warrant.
(b) Upon any adjustment of the Unit Price and number of shares
purchasable upon the exercise of this Warrant, the Company shall give written
notice thereof, by first class mail, postage prepaid, addressed to the
registered holder of this Warrant at the address of such holder as shown on the
books of the Company. The notice shall be signed by the Company's chief
financial officer and shall state the Unit Price resulting from such adjustment
and the increase or decrease, if any, in the number of shares purchasable at
such price upon the exercise
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of this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
9. Consolidation or Merger of the Company. If the Company is a party to
(a) any consolidation or merger with another corporation in which the Company is
not the surviving entity (other than a merger to effect a reincorporation), (b)
any consolidation or merger of another entity into the Company in which the
Company is the surviving entity but, in connection therewith, the Company's
equity securities are changed into or exchanged for stock or other securities of
any other entity, or (c) any capital reorganization or reclassification of its
Warrant Stock or Common Stock, pursuant to any of which transactions the holders
of the Company's capital stock are entitled to receive with respect to or in
exchange for such capital stock, stock or other securities, whether alone or
together with any other consideration (all such consideration being the "Allowed
Consideration"), then, as a condition of such transaction, lawful and adequate
provision shall be made whereby the Holder hereof shall thereafter have the
right to purchase and receive (in lieu of the shares of the Warrant Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
this Warrant) such Allowed Consideration as may be issued or payable with
respect to or in exchange for the number of shares of such Warrant Stock
immediately theretofore purchasable and receivable upon the exercise of this
Warrant. In any such case, appropriate provision shall be made with respect to
the rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Unit Price and the number of shares purchasable and receivable upon the
exercise of this Warrant) shall thereafter be applicable, as nearly as may be
reasonably practicable (as determined in the good faith of the Company), in
relation to the Allowed Consideration thereafter deliverable upon the exercise
hereof.
10. Issue Tax. The issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax that may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then Holder of the Warrant being exercised.
11. Closing of Books. The Company will at no time close its transfer books
against the transfer of any Warrant or of any shares of Warrant Stock issued or
issuable upon the exercise of any warrant in any manner that interferes with the
timely exercise of this Warrant.
12. Holder as Owner. The Company may deem and treat the holder of record
of this Warrant as the absolute owner hereof for all purposes regardless of any
notice to the contrary.
13. No Rights as Shareholder. This Warrant shall not entitle the Holder to
any voting rights or to any other rights as a shareholder of the Company or to
any other rights whatsoever except the rights stated herein; and no cash
dividend or interest shall be payable or shall accrue in respect of this Warrant
or the Warrant Stock purchasable hereunder unless, until and to the extent that,
this Warrant shall be exercised. No provisions hereof, in the absence of
affirmative action by the Holder to purchase shares of Warrant Stock, and no
mere enumeration herein of the rights or privileges of the Holder hereof, shall
give rise to any liability of such Holder for the
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Unit Price or as a shareholder of the Company, whether such liability is
asserted by the Company or by its creditors.
14. Governing Law; Venue. The validity and interpretation of the terms and
provisions of this Warrant shall be governed by the internal laws of the State
of Washington with regard to principles of conflict of laws. The venue of any
action or proceeding brought to enforce this Warrant or any provision hereof
shall be brought in the state or federal courts in Seattle, King County,
Washington.
15. Construction. The 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 thereof.
16. Expiration. This Warrant shall be void and all rights represented
hereby shall cease unless exercised on or before the Termination Time. All
restrictions set forth herein on the shares of capital stock issued upon
exercise of any rights hereunder shall survive such exercise and expiration of
the rights granted hereunder.
17. Exchange of Warrant. This Warrant is exchangeable upon the surrender
hereof by the Holder at the office of the Company for new Warrants of like tenor
but of different denominations representing in the aggregate the rights to
subscribe for and purchase the number of shares that may be subscribed for and
purchased hereunder, each of such new Warrants to represent the right to
subscribe for and purchase such number of shares as shall be designated by the
Holder at the time of such surrender.
18. Lost Warrant Certificate. If this Warrant is lost, stolen, mutilated
or destroyed, the Company shall issue a new Warrant of like denomination, tenor
and date as this Warrant, subject to the Company's right to require the Holder
to give the Company a bond or other satisfactory security sufficient to
indemnify the Company against any claim that may be made against it (including
any expense or liability) on account of the alleged loss, theft, mutilation or
destruction of this Warrant or the issuance of such new Warrant.
19. Waivers and Amendments. This Warrant or any provision hereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
20. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be mailed by United States mail first-
class postage prepaid, or by registered or certified mail with return receipt
requested, addressed as follows:
If to the Holder:
To the address set forth by the Holder on the signature page
of this Warrant
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If to the Company:
Globe-1, Incorporated
600 1st Avenue, Ste. 201
Seattle, WA 98104
Attn: Robert Gilmore, CEO
The Company shall be entitled to specify a different address by giving five
(5) days' advance written notice as aforesaid to the Holder.
21. Investment Intent. By accepting this Warrant, the Holder represents
that he, she or it is acquiring this Warrant for investment and not with a view
to, or for sale in connection with, any distribution thereof
IN WITNESS WHEREOF, the Company and the Holder have executed this Warrant
effective as of the date first written above.
COMPANY GLOBE-1 INCORPORATED
By:
---------------------------
HOLDER
Address:
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ELECTION TO PURCHASE
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(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant (the "Owner") irrevocably
exercises this Warrant for shares of Common Stock of Globe-1,
Incorporated (the "Exercise Shares"), on the terms and conditions specified in
this Warrant, and requests that a certificate for the Exercise Shares hereby
purchased (and any securities or other property issuable upon such exercise) be
issued in the name of and delivered to whose address is,
and, if such shares shall not include all of the shares for which this Warrant
is exercisable, that a new Warrant of like tenor and date for the balance of the
shares issuable hereunder (properly reduced to reflect net exercise, if
applicable) be delivered to the undersigned.
The Owner wishes to utilize net exercise in payment of the exercise price
for the Exercise Shares and hereby authorizes the Company to adjust the number
of shares for which this Warrant may be exercised in the future to properly
reflect such net exercise:
Yes, for shares No
Dated:
Signature of Registered Owner
Title:
(Street Address)
(City) (State) (Zip Code)
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