Common Stock Warrant of Fuel Corporation of America dated August 12, 2005



 

 

Exhibit 4.3

 

THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR ANY APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS. THESE SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT OR LAWS. 




 



	 	August 12, 2005




 

FUEL
CORPORATION OF AMERICA

 

 

COMMON
STOCK WARRANT 

 

THIS
CERTIFIES
that, for value received, Tryant, LLC and its permitted transferees hereunder
(the “Holder”), is entitled to subscribe for and purchase from FUEL
CORPORATOIN OF AMERICA,
a Nevada corporation (the “Company”), up to 2,000,000 fully paid and
nonassessable shares (the “Warrant Shares”) of common stock, $.001 par value, of
the Company (the “Common Stock”) at $.01 per share (the “Exercise Price”)
subject to adjustment as provided in Section 2 hereof. Upon vesting of this
Warrant pursuant to Section 1(b), in whole or in part, the Warrant shall be
exercisable until the earlier of (i) repayment of the promissory note as
described in Section 1(b) or (ii) August 12, 2008 (the “Exercise
Period”).

 

SECTION
1. Exercise
of Warrant.

 

General.
(a) This Warrant may be exercised by the Holder as to the whole or any lesser
number of the Warrant Shares covered hereby, upon surrender of this Warrant to
the Company at its principal executive office together with the Notice of
Exercise attached hereto as Exhibit A, duly completed and executed by the
Holder, and payment to the Company of the aggregate Exercise Price for the
Warrant Shares to be purchased in the form of (i) a check made payable to
the Company, (ii) wire transfer according to the Company’s instructions or
(iii) any combination of (i) and (ii). The exercise of this Warrant shall
be deemed to have been effected on the day on which the Holder surrenders this
Warrant to the Company and satisfies all of the requirements of this
Section 1. Upon such exercise, the Holder will be deemed a shareholder of
record of those Warrant Shares for which the warrant has been exercised with all
rights of a shareholder (including, without limitation, all voting rights with
respect to such Warrant Shares and all rights to receive any dividends with
respect to such Warrant Shares). If this Warrant is to be exercised in respect
of less than all of the Warrant Shares covered hereby, the Holder shall be
entitled to receive a new warrant covering the number of Warrant Shares in
respect of which this Warrant shall not have been exercised and for which it
remains subject to exercise. Such new warrant shall be in all other respects
identical to this Warrant.

 

(b)
The Warrant shall vest as to 1,555,556 Warrant Shares in the event the Company
does not make a timely payment of $175,000 due on September 30, 2005 pursuant to
its promissory note to the Holder in the amount of $225,000. Upon the Company
curing such default, the Warrants constituting the unexercised portion of the
1,555,556 Warrant Shares shall be cancelled. The remaining 444,444 Warrant
Shares shall vest in the event the Company does not 

 







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make
a timely payment of $50,000 due on December 31, 2005 pursuant to its promissory
note to the Holder in the amount of $225,000. Upon the Company curing such
default, the Warrants constituting the unexercised portion of the 444,444
Warrant Shares shall be cancelled. This Warrant shall be cancelled upon the
Company paying the sum due under the promissory note due to the Holder in the
amount of $225,000.

 

SECTION
2. Adjustment
of Warrant Price.
If,
at any time during the Exercise Period, 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 of shares of such class of Common Stock, or
(ii) decreased by a combination or reverse split 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, reverse split-up or combination, the Warrant Price shall be
proportionately
reduced, in the case of an increase in shares of Common Stock outstanding, or
proportionately increased, in the case of a decrease in shares of Common Stock
outstanding, in both cases by the ratio which the total number of shares of
Common Stock to be outstanding immediately after such event bears to the total
number of shares of Common Stock outstanding immediately prior to such
event.

 

SECTION
3. Adjustment
of Warrant Shares.
Upon
each adjustment of the Warrant Price as provided in Section 2, the Holder shall
thereafter be entitled to subscribe for and purchase, at the Warrant Price
resulting from such adjustment, the number of Warrant Shares equal to the
product of (i) the number of Warrant Shares existing prior to such adjustment
and (ii) the quotient obtained by dividing (A) the Warrant Price existing prior
to such adjustment by (B) the new Warrant Price resulting from such adjustment.
No fractional shares of capital stock of the Company shall be issued as a result
of any such adjustment, and any fractional shares resulting from the
computations pursuant to this paragraph shall be eliminated without
consideration.

 

SECTION
4. No
Shareholder Rights.
This
Warrant shall not entitle the holder hereof to any voting rights or other rights
as a shareholder of the Company.

 

SECTION
5. Covenant
of the Company.
The Company covenants and agrees that the Company shall at all times have
authorized and reserved or shall authorize and reserve, free from preemptive
rights, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.

 

SECTION
6. Investment
Representations and Warranties.
The Holder hereby represents and warrants to the Company as
follows:

 

(a)     
The
Holder is acquiring the Warrant, and it will acquire the Common Stock issuable
upon exercise thereof, for its own account, for investment and not with a view
to the distribution thereof, nor with any present intention of distributing the
same. The Holder understands that the Warrant and Common Stock issuable upon
exercise thereof, will not be registered under the Act or registered or
qualified under any state securities or “blue-sky” laws, by reason of their
issuance in a transaction exempt from the registration and/or qualification
requirements thereof, and that they must be held indefinitely unless a
subsequent disposition thereof is registered under the Act or registered or
qualified under any applicable state securities or “blue-sky” laws or is exempt
from registration and/or qualification.

 







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(b)     
The
Holder understands that the exemption from registration afforded by Rule 144
(the provisions of which are known to the Holder) promulgated under the Act
depends on the satisfaction of various conditions and that, if applicable, Rule
144 may only afford the basis for sales under certain circumstances only in
limited amounts.

 

(c)     
The
Holder has no need for liquidity in its investment in the Company, and is able
to bear the economic risk of such investment for an indefinite period and to
afford a complete loss thereof. 

 

(d)     
The
Holder is an “accredited purchaser” as such term is defined in Rule 501 (the
provisions of which are known to the Holder) promulgated under the
Act.

 

SECTION
7. Restrictions
on Transfer.
The Holder of this Warrant by acceptance hereof agrees that the transfer of this
Warrant and the shares of Common Stock issuable upon exercise of this Warrant
are subject to the following provisions:

 

(a)     
General.
Subject to the requirements of the Act or any applicable state securities laws,
the Holder may sell, assign, transfer or otherwise dispose of all or any portion
of the Warrants or the Warrant Shares acquired upon any exercise hereof at any
time and from time to time. Upon the sale, assignment, transfer or other
disposition of all or any portion of the Warrants, Holder shall deliver to the
Company a written notice of such in the form attached hereto as Exhibit
B,
duly executed by Holder, which includes the identity and address of any
purchaser, assignor or transferee. 

 

(b)     
Restrictive
Legend.
Each certificate for Warrant Shares held by the Holder
and each certificate for any such securities issued to subsequent transferees of
any such certificate shall be stamped or otherwise imprinted with legends in
substantially the following form:

 

“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) OR ANY RELEVANT STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS”. 

 

(c) Indemnification.
Holder acknowledges that he, she or it understands the meaning and legal
consequences of the representations, warranties and acknowledgments he, she or
it has made in Section 7 and elsewhere in this Warrant and he, she or it
understands that the Company is relying upon the truth and accuracy thereof.
Accordingly, the Holder hereby agrees to indemnify and hold harmless the
Company, its officers, agents and representatives, from and against any and all
loss, damage or liability due to or arising out of a breach of any
representation or warranty of Holder contained in this Warrant.

 

SECTION
8. Amendment.
The terms and provisions of this Warrant may not be modified or amended, except
with the written consent of the Company and the Holder.

 







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SECTION
9. Reorganizations,
Etc.
In case, at any time during the Exercise Period, of any capital reorganization,
of any reclassification of the stock of the Company (other than a change in par
value or from par value to no par value or from no par value to par value or as
a result of a stock dividend or subdivision, split-up or combination of shares),
or the consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
operation and which does not result in any change or reclassification in the
Warrant Shares) or of the sale of all or substantially all the properties and
assets of the Company as an entirety to any other corporation, the Company, at
its sole discretion, shall have the right and option to (A) provide 10 days
prior written notice of such event to the Holder and this Warrant shall
terminate and be of no further force and effect on and after the effective date
of such capital reorganization or reclassification or the consummation of such
consolidation, sale or merger; or (B) provide that this Warrant shall, after
such reorganization, reclassification, consolidation, merger or sale, be
exercisable for the kind and number of shares of stock or other securities or
property of the Company or of the corporation resulting from such consolidation
or surviving such merger or to which such properties and assets shall have been
sold to which such holder would have been entitled if he, she or it had held the
Warrant Shares issuable upon the exercise hereof immediately prior to such
reorganization, reclassification, consolidation, merger or sale.

 

SECTION
10. Lost,
Stolen, Mutilated or Destroyed Warrant.
If
this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such
terms as to indemnity or otherwise as it may in its discretion impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.

 

SECTION
11. Notices.
All notices, advices and communications to be given or otherwise made to any
party to this Agreement shall be deemed to be sufficient if contained in a
written instrument delivered in person or by telecopier or duly sent by first
class registered or certified mail, return receipt requested, postage prepaid,
or by overnight courier, or by electronic mail, with a copy thereof to be sent
by mail (as aforesaid) within 24 hours of such electronic mail, addressed to
such party at the address set forth below or at such other address as may
hereafter be designated in writing by the addressee to the addresser listing all
parties:

 


	 	
      (a)
	
      If
      to the Company, to:







Fuel
Corporation of America

27201
Puerta Real, Suite 350

Mission
Viejo, California 92691

Attention:
Thomas Banks

               
Chief
Executive Officer







and










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      (b)
	
      If
      to the Holder, to:







Tryant,
LLC

1608
W. 2225 S.

Woods
Cross, Utah 84087

Attention:
Jeff Jenson







or
to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such deliver, (ii) in the case of nationally-recognized overnight courier, on
the next business day after the date when sent and (ii) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted. As used in this Section 11, “business day” shall
mean any day other than a day on which banking institutions in the State of New
York are legally closed for business.




SECTION
12.  Binding
Effect on Successors.
Subject to Section 9 hereof, this Warrant shall be binding upon any corporation
succeeding the Company by merger, consolidation or acquisition of all or
substantially all of the Company’s assets. 

 

SECTION
13.  Descriptive
Headings and Governing Law.
The description headings of the several sections and paragraphs of this Warrant
are inserted for convenience only and do not constitute a part of this Warrant.
This Warrant shall be construed and enforced in accordance with, and the rights
of the parties shall be governed by, the laws of the State of New York (without
giving effect to conflicts of law principles thereunder).

 

SECTION
14.  Fractional
Shares.
No fractional shares shall be issued upon exercise of this Warrant. The Company
shall, in lieu of issuing any fractional share, pay the holder entitled to such
fraction a sum in cash equal to such fraction multiplied by the then effective
Warrant Price.

 

*
* *










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IN
WITNESS WHEREOF,
the undersigned has caused this Common Stock Warrant to be executed by its duly
authorized officer as of the date first above written.

 


	 	 	 
	 	FUEL
      CORPORATION OF AMERICA
	 
 	 
 	 
 
	 	By:  	/s/ Thomas Banks
	 	
      

    
	 	
      Name:
      Thomas Banks

      Title:
      Chief Executive Officer




 





















Exhibit
A

 

 

Form
of Subscription








 

 

NOTICE
OF EXERCISE

COMMON
STOCK WARRANT

 

To:       Fuel
Corporation of America

 

The
undersigned hereby elects to purchase _______ shares of Common Stock (“Common
Stock”) of Fuel Corporation of America, a Nevada corporation, (the “Company”)
pursuant to the terms of the attached Warrant, and tenders herewith payment of
the aggregate exercise price therefor and any transfer taxes payable pursuant to
the terms of the Warrant.

 

Please
issue a certificate or certificates representing said shares of Common Stock in
the name of the undersigned or in such other name or names as are specified
below:




Name:     
__________________________________________________

Address:  
__________________________________________________ 

               
__________________________________________________







 

IN
WITNESS WHEREOF, the Warrant Holder has executed this Notice of Exercise
effective this ___ day of ________, ______.

 


	 	 	 
	 	  	 
	 	
      

    
	 	 
	 	(Signature)



 







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Exhibit
B




Form
of Assignment

[To
be signed only upon transfer of Warrant]




For
value received, the undersigned hereby sells, assigns and transfers unto the
right represented by the within Warrant to purchase _______ shares of Common
Stock of FUEL
CORPORATION OF AMERICA,
to which the within Warrant relates, and appoints Attorney to transfer such
right on the books of FUEL
CORPORATION OF AMERICA,
with full power of substitution in the premises. 

 

 


	Dated:	 	 
		
      

    	 
	 	
      (Signature)
	 




 

Signed
in the presence of: 




______________________________



 

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