Contract
WARRANT AGREEMENT dated as of
August 27, 2008 between Xxxxx World Trade, Ltd.., a Nevada corporation (the
"Company"), with its principal place of business is 000-00 000xx Xxxxxx,
Xxxxxxx, XX 00000 and Xxxxxxxx Xxxxxx., an
individual residing at 0000 00xx Xxxxxx, Xxxxxxxx, XX 00000, and his heirs,
successors, designees and assigns (the "Holder").
WHEREAS, the Company proposes
to issue to the Holder a warrant to purchase up to an aggregate of 32,000 shares
of the Company's common stock, $.001 par value, (the "Common Stock") which shall
be known as the "Series B" Warrant.
NOW, THEREFORE, in
consideration of the premises, the agreements herein set forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Company
hereby agrees to issue to the Holder the warrant described in Section 1.1
below.
1.1
Series B
Warrant. The Series B
Warrant grants to the Holder the right to purchase, at any time from August 27,
2008 until 5:00 P.M., New York time, on August 27, 2013, up to an aggregate of
32,000 shares of Common Stock (the "Shares") at an initial exercise price
(subject to adjustment as provided in Section 8 hereof) of
$2.00 per share subject to the terms and conditions of this
Agreement. Except as set forth herein, the shares issuable upon
exercise of the Series B Warrant are in all respects identical to the shares of
Common Stock held by all of the Company's other shareholders.
2. Warrant
Certificate. The warrant
certificate (the "Warrant Certificate") delivered and to be delivered pursuant
to this Agreement shall be in the form set forth in Exhibit A,
attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted by this
Agreement.
3.1 Method of
Exercise. The Series B Warrant is
initially exercisable at the initial exercise price (subject to adjustment as
provided in Section 8 hereof) per Share payable by certified or official bank
check in New York Clearing House funds or by surrender to the Company of a
number of Shares issuable pursuant to the Series B Warrant which, when valued at
the exercise price, equal the amount of the exercise price for the Shares to be
issued upon exercise of the Series B Warrant, subject to adjustment as provided
in Section 8 hereof. Upon surrender of a Warrant Certificate with the
annexed Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the Common Stock purchased at the
Company's principal offices (presently located at 00-00 000xx Xxxxxx,
Xxxxxxx, XX 11434) the registered holder of a Warrant Certificate ("Holder" or
"Holders") shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased. The purchase rights represented
by each Warrant Certificate are exercisable at the option of the Holders
thereof, in whole or part (but not as to fractional shares of the Common
Stock). In the case of the purchase of less than all Common Stock
purchasable under any Warrant Certificate, the Company shall cancel said Warrant
Certificate upon the surrender thereof and shall execute and deliver a new
Warrant Certificate of like tenor for the balance of the Common Stock
purchasable thereunder.
3.2 Definition
of Market Price. As used herein,
the phrase "Market Price" at any date shall be deemed to be (i) when referring
to the Common Stock, the last reported price, or, in case no such reported sale
takes place on such day, the average of the last reported prices for the last
three (3) trading days, in either case as officially reported by the principal
securities exchange on which the Common Stock is listed or admitted to trading
or by the Nasdaq Stock Market ("NSM") or, (ii) if the Common Stock is
not listed or admitted to trading on any national securities exchange or quoted
by NSM, the average closing price as furnished by the National Association of
Securities Dealers, Inc. ("NASD") through Nasdaq or OTC Bulletin Board, or
similar organization if Nasdaq is no longer reporting such information, or (iii)
if the Common Stock is not quoted on Nasdaq or the OTC Bulletin Board, or such
similar organization as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to
it.
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4. Issuance
of Certificate. Upon the
exercise of the Series B Warrant, the issuance of certificates for shares of
Common Stock shall be made forthwith (and in any event within five (5) business
days thereafter) without charge to the Holder thereof including, without
limitation, any tax which may be payable in respect of the issuance thereof, and
such certificates shall (subject to the provisions of Sections 5 and 7 hereof)
be issued in the name of, or in such names as may be directed by, the Holder
thereof; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the Holder and
the Company shall not be required to issue or deliver such certificates unless
or until the person or persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
The Warrant Certificate and the
certificate representing the Shares shall be executed on behalf of the Company
by the manual or facsimile signature of the then present Chief Executive
Officer, Chairman or Vice Chairman of the Board of Directors or President or
Vice President of the Company under its corporate seal reproduced thereon,
attested to by the manual or facsimile signature of the then present Secretary
or Assistant Secretary of the Company. The Warrant Certificate shall be dated
the date of execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
5. Restriction
On Transfer of Warrants. The Holder of a
Warrant Certificate, by its acceptance thereof, covenants and agrees that the
Series B Warrant is being acquired as an investment and not with a view to the
distribution thereof; that the Series B Warrant may not be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, for a
period of one (1) year from the date hereof.
6. Exercise
Price.
6.1
Initial
and Adjusted Exercise Price. Except as
otherwise provided in Section 8 hereof, the initial exercise price of each
Series B Warrant to purchase Common Stock shall be equal to the initial exercise
price set forth in Sections 1.1 above. The adjusted exercise price
shall be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the provisions of
Section 8 hereof.
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6.2 Exercise
Price. The term
"Exercise Price" herein shall mean the applicable initial exercise price or with
respect to the Series B Warrant to purchase Common Stock at the adjusted
exercise price, depending upon the context.
7.1 Current
Registration Under the Securities Act of 1933. The Company has
previously registered certain shares of common stock under the Securities Act of
1933, as amended (the "Act") (the "Registration Statement”).
(a) If,
at any time commencing after the date of this Agreement, the Company proposes to
register any of its securities under the Act (with the exception of a
registration statement on Form S-8 or S-4 or subsequent similar forms), either
for its own account or the account of any other security holder of the Company
possessing registration rights ("Other Stockholders"), it shall give written
notice, at least thirty (30) days prior to the filing of each such registration
statement, to the Holder and to all other Holders of warrants with registration
rights of the opportunity to register the Common Stock underlying such warrants
(collectively, "Registrable Securities") of its intention to do
so. If the Holder or other Holders of Registrable Securities notify
the Company within twenty-one (21) days after the receipt of any such notice of
its or their desire to include any such securities in such proposed registration
statement, the Company shall afford the Holder and such other Holders of such
securities the opportunity to have any such securities registered under such
registration statement.
(b) If
the registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Holder and
such other Holders as part of the written notice given pursuant to Section
7.2(a) hereof. The right of the Holder or any such other Holder to
registration pursuant to this Section 7.2 shall be conditioned upon their
participation in such underwriting and the inclusion of their Registrable
Securities in the underwriting to the extent hereinafter provided. The Holder
and all other Holders proposing to distribute their securities through such
underwriting shall (together with the Company and any officer, directors or
Other Stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter
selected by the Company. Notwithstanding any other provision of this
Section 7.2, if the underwriter advises the Company in writing that marketing
factors require a limitation or elimination of the number of shares of Common
Stock or other securities to be underwritten, the underwriter may limit the
number of shares of Common Stock or other securities to be included in the
registration and underwriting. The Company shall so advise the Holder and all
other Holders of Registrable Securities requesting registration, and the number
of shares of Common Stock or other securities that are entitled to be included
in the registration and underwriting shall be allocated among the Holder and
other Holders requesting registration, in each case, in proportion, as nearly as
practicable, to the respective amounts of securities which they had requested to
be included in such registration at the time of filing the registration
statement.
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(c) Notwithstanding
the provisions of this Section 7.2, the Company shall have the right at any time
after it shall have given written notice pursuant to Section 7.2(a) hereof
(irrespective of whether a written request for inclusion of any such securities
shall have been made) to elect not to file any such proposed registration
statement, or to withdraw the same after the filing but prior to the effective
date thereof.
7.3 Covenants
of the Company With Respect to Registration. In connection
with any registration under Section 7.2, the Company covenants and agrees as
follows:
(a) The
Company shall use its best efforts to have any registration statement declared
effective at the earliest possible time, and shall furnish each Holder desiring
to sell Registrable Securities such number of prospectuses as shall reasonably
be requested.
(b) The
Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel
and any underwriting or selling commissions), fees and expenses in connection
with all registration statements filed pursuant to Section 7.2 hereof including,
without limitation, the Company's legal and accounting fees, printing expenses,
blue sky fees and expenses.
(c) The
Company will take all necessary action which may be required in qualifying or
registering the Registrable Securities included in a registration statement for
offering and sale under the securities or blue sky laws of such states as
reasonably are requested by the Holder(s); provided that the Company shall not
be obligated to execute or file any general consent to service of process or to
qualify as a foreign corporation to do business under the laws of any such
jurisdiction.
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(d) The
Company shall indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement and each person, if any, who controls
such Holders within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss,
claim, damage, expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement.
(e) The
Holder(s) of the Registrable Securities to be sold pursuant to a registration
statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such registration statement.
(f) For
purposes of this Agreement, the term "Majority" in reference to the Holders of
Registrable Securities, shall mean in excess of fifty percent (50%) of the
Registrable Securities that have not been resold to the public pursuant to a
registration statement filed with the SEC under the Act.
(g) Nothing
contained in this Agreement shall be construed as requiring the Holder(s) to
exercise their Series B Warrant prior to the initial filing of any registration
statement or the effectiveness thereof.
7.4 Restrictive
Legends. In the event that
the Company fails to maintain the effectiveness of the Registration Statement,
such that the exercise, in part or in whole, of the Series B Warrants are not,
at the time of such exercise, registered under the Act, any certificates
representing the Shares underlying the Series B Warrants and any of the other
securities issuable upon exercise of the Series B Warrants shall bear the
following restrictive legend:
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The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended ("Act"), and may not be offered or sold
except pursuant to (i) an effective registration statement under the
Act, (ii) to the extent applicable, Rule 144 under the Act (or any
similar rule under such Act relating to the disposition of securities), or (iii)
an opinion of counsel, if such opinion shall be reasonably satisfactory to
counsel to the issuer, that an exemption from registration under such Act is
available.
8.1 Subdivision
and Combination. In case the
Company shall at any time subdivide or combine the outstanding shares of Common
Stock, the Exercise Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination.
8.2 Adjustment
in Number of Securities. Upon each
adjustment of the Exercise Price pursuant to the provisions of this Section 8,
the number of Common Stock issuable upon the exercise at the adjusted exercise
price of each Series B Warrant shall be adjusted to the nearest full amount by
multiplying a number equal to the Exercise Price in effect immediately prior to
such adjustment by the number of Common Stock issuable upon exercise of the
Series B Warrant immediately prior to such adjustment and dividing the product
so obtained by the adjusted Exercise Price.
8.3 Definition
of Common Stock. For the purpose
of this Agreement, the term "Common Stock" shall mean (i) the class of stock
designated as Common Stock in the Certificate of Incorporation of the Company as
amended as of the date hereof, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. The Company covenants that so long as any of the Series
B Warrant are outstanding, the Company shall not without the prior written
consent of the Holder issue any securities whatsoever other than Common
Stock. In the event that the Company shall, upon the consent of the
Holder, after the date hereof issue securities with greater or superior voting
rights than the shares of Common Stock outstanding as of the date hereof, the
Holder, at its option, may receive upon exercise of any Series B Warrant either
shares of Common Stock or a like number of such securities with greater or
superior voting rights.
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8.4 Merger or
Consolidation. In case of any
consolidation of the Company with, or merger of the Company with, or merger of
the Company into, another corporation (other than a consolidation or merger
which does not result in any reclassification or change of the outstanding
Common Stock), the corporation formed by such consolidation or merger shall
execute and deliver to the Holder a supplemental warrant agreement providing
that the holder of each Series B Warrant then outstanding or to be outstanding
shall have the right thereafter (until the expiration of such Series B Warrant)
to receive, upon exercise of such warrant, the kind and amount of shares of
stock and other securities and property receivable upon such consolidation or
merger, by a holder of the number of shares of Common Stock of the Company for
which such Series B Warrant might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or
mergers.
8.5 No
Adjustment of Exercise Price in Certain Cases. No adjustment of
the Exercise Price shall be made:
(a) upon
the issuance or sale of the Series B Warrant or the shares of Common Stock
issuable upon the exercise of the Series B Warrant; or
(b)
If the amount of said adjustment shall be less than two (2) cents per Warrant
Security, provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment which, together
with any adjustment so carried forward, shall amount to at least two (2) cents
per Warrant Security.
9. Exchange
and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Common Stock in such denominations as shall
be designed by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
any Warrant Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Series B Warrant, if mutilated, the Company will make and
deliver a new Warrant Certificate of like tenor, in lieu
thereof.
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10. Elimination
of Fractional Interests. The Company shall
not be required to issue fractional shares of Common Stock or the Series B
Warrant upon the exercise of the Series B Warrant. Warrants may only
be exercised in such multiples as are required to permit the issuance by the
Company of one or more whole shares of Common Stock. If one or more
Series B Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of whole shares of Common Stock which shall be issuable
upon such exercise thereof shall be computed on the basis of the aggregate
number of shares of Common Stock purchasable on exercise of the
Series B Warrant so presented. If any fraction of a share of Common
Stock would, except for the provisions provided herein, be issuable
on the exercise of any Series B Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to such fraction multiplied by the
then current market value of a share of Common Stock, determined as
follows:
(1) If
the Common Stock is listed, or admitted to unlisted trading privileges on the
New York Stock Exchange ("NYSE") or the American Stock Exchange ("AMEX"), or is
traded on the NSM, the current market value of a share of Common
Stock shall be the closing sale price of the Common
Stock at the end of the regular trading session on the last business
day prior to the date of exercise of the Series B Warrant on whichever of such
exchanges or NSM had the highest average daily trading volume for the Common
Stock on such day; or
(2) If
the Common Stock is not listed or admitted to unlisted trading privileges, on
either the NYSE or the AMEX and is not traded on NSM, but is quoted or reported
on Nasdaq, the current market value of a share of Common Stock shall be the
closing price (or the last sale price, if then reported by Nasdaq) of the Common
Stock at the end of the regular trading session on the last business
day prior to the date of exercise of the Series B Warrant as quoted or reported
on Nasdaq; or
(3) If
the Common Stock is not listed, or admitted to unlisted trading privileges, on
either of the NYSE or the AMEX, and is not traded on NSM or quoted or reported
on Nasdaq, but is listed or admitted to unlisted trading privileges on the BSE
or another national securities exchange (other than the NYSE or the AMEX), the
current market value of a share of Common Stock shall be the closing price of
the Common Stock at the end of the regular trading session on the last business
day prior to the date of exercise of the Series B Warrant on whichever of such
exchanges has the highest average daily trading volume for the Common Stock on
such day; or
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(4) If
the Common Stock is not listed or admitted to unlisted trading privileges on any
national securities exchange, or listed for trading on NSM or quoted or reported
on Nasdaq, but is traded in the over-the-counter market, the current market
value of a share of Common Stock shall be the average of the last reported bid
and asked prices of the Common Stock reported by the OTC Bulletin Board on the
last business day prior to the date of exercise of the Series B Warrant;
or
(5) If
the Common Stock as the case may be, is not listed, admitted to unlisted trading
privileges on any national securities exchange, or listed for trading on NSM or
quoted or reported on Nasdaq, and bid and asked prices of the Common Stock are
not reported by the OTC Bulletin Board or National Quotation Bureau, Inc., the
current market value of a share of Common Stock shall be an amount, not less
than the book value thereof as of the end of the most recently completed fiscal
quarter of the Company ending prior to the date of exercise, determined in
accordance with generally acceptable accounting principles, consistently
applied.
11. Reservation
and Listing of Securities. The Company shall
at all times reserve and keep available out of its authorized shares of Common
Stock, solely for the purpose of issuance upon the exercise of the Series B
Warrant such number of shares of Common Stock or other securities, properties or
rights as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Series B Warrant and payment of
the Exercise Price therefore, all shares of Common Stock and other Securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any
stockholder. As long as the Series B Warrant shall be outstanding,
the Company shall use its best efforts to cause all shares of Common Stock
issuable upon the exercise of the Series B Warrant to be listed (subject to
official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and quoted
on XXX.
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00. Notices
to Warrant Holders. Nothing contained
in this Agreement shall be construed as conferring upon the Holders the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Series B Warrants and their
exercise, any of the following events shall occur:
(a) the
Company shall take a record of the holders of its shares of Common Stock for the
purpose of entitling them to receive a dividend or distribution payable other
than in cash, or a cash dividend or distribution payable other than out of
current or retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the
Company shall offer to all the holders of its Common Stock any additional shares
of capital stock of the Company or securities convertible into or exchangeable
for shares of capital stock of the Company, or any option, right or warrant to
subscribe therefore; or (c) a dissolution, liquidation or winding up
of the Company (other than in connection with a consolidation or merger) or a
sale of all or substantially all of its property, assets and business as an
entirety shall be proposed; then, in any one or more of said events, the Company
shall give written notice of such event at least fifteen (15) days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or
sale. Such notice shall specify such record date or the date of
closing the transfer book, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
13. Notice.
All notices, requests, consents and
other communications hereunder shall be in writing and shall be deemed to have
been duly made and sent when delivered, or mailed by registered or certified
mail, return receipt requested:
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(a) If
to the registered Holder of the Series B Warrant, to the address of such Holder
as shown on the books of the Company; or
(b) If
to the Company, to the address set forth in Section 3 hereof or to such other
address as the Company may designate by notice to the Holders.
14. Supplements
and Amendments. The Company and
the Holder may from time to time supplement or amend this Agreement without the
approval of any Holders of Warrant Certificates in order to cure any ambiguity,
to correct or supplement any provision contained herein which may be defective
or inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Holder may deem necessary or desirable and which the Company and the Holder deem
shall not adversely affect the interests of the Holders of Warrant
Certificates.
15. Successors. All the covenants
and provisions of this Agreement shall be binding upon and inure to the benefit
of the Company, the Holders and their respective successors and assigns
hereunder.
16. Termination. This Agreement
shall terminate at the close of business on August 27,
2013. Notwithstanding the foregoing, the indemnification provisions
of Section 7 shall survive such termination until the close of business on
August 27, 2013.
17. Governing
Law; Submission to Jurisdiction. This Agreement
and each Warrant Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
construed in accordance with the laws of said State without giving effect to the
rules of said State governing the conflicts of laws.
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The Company, the Holder and any other
registered Holders hereby agree that any action, proceeding or claim against it
arising out of, or relating in any way to, this Agreement shall be brought and
enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company, the
Holder and any other registered Holders hereby irrevocably waive any objection
to such exclusive jurisdiction or inconvenient forum. Any such
process or summons to be served upon any of the Company, the Holder and the
Holders (at the option of the party bringing such action, proceeding or claim)
may be served by transmitting a copy thereof, by registered or certified mail,
return receipt requested, postage prepaid, addressed to it at the address set
forth in Section 14 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the party so served in any action,
proceeding or claim. The Company, the Holder and any other registered
Holders agree that the prevailing party(ies) in any such action or proceeding
shall be entitled to recover from the other party(ies) all of its'/their
reasonable legal costs and expenses relating to such action or proceeding and
incurred in connection with the preparation therefore.
18. Entire
Agreement; Modification. This Agreement
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
19. Severability. If any provision
of this Agreement shall be held to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provision of this
Agreement.
20. Captions. The caption
headings of the Sections of this Agreement are for convenience of reference only
and are not intended, nor should they be construed as, a part of this Agreement
and shall be given no substantive effect.
21. Benefits
of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company and the Holder and any other registered Holder(s) of the Warrant
Certificates or Common Stock any legal or equitable right, remedy or claim under
this Agreement; and this Agreement shall be for the sole benefit of the Company
and the Holder and any other registered Holders of Warrant Certificates or
Common Stock.
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22. Counterparts. This Agreement
may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed, as of the day and
year first above written.
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Xxxxx
World Trade, Ltd.
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By:
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/s/
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Name: Xxxxx
X. Xxxxxxxx
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Title:
Chief Executive Officer
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Xxxxxxxx
Xxxxxx
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/s/
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EXHIBIT
A
[FORM
OF SERIES B WARRANT CERTIFICATE]
THE
WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON
EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE
TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE
ON OR BEFORE
5:00
P.M., NEW YORK TIME, AUGUST 27, 2013
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No.
1
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Series
B Warrant to Purchase
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32,000
Shares of Common Stock
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SERIES B
WARRANT CERTIFICATE
This Warrant Certificate certifies that
Xxxxxxxx Xxxxxx, or
registered assigns, is the registered holder of Warrants to purchase initially,
at any time from August 27, 2008 until 5:00 p.m. New York time on August 27,
2013 ("Expiration Date"), up to Forty Thousand (32,000) fully-paid and
non-assessable shares of common stock, $.001 par value ("Common Stock") of Xxxxx
World Trade, Ltd., a Nevada corporation (the "Company"), at the initial exercise
price, subject to adjustment in certain events (the "Exercise Price"), equal to
$2.00 per share upon surrender of this Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement dated as of August 27,
2008 between the Company and Xxxxxxxx Xxxxxx (the "Warrant
Agreement"). Payment of the Exercise Price shall be made by certified
or official bank check in New York Clearing House funds payable to the order of
the Company or by surrender of this Warrant Certificate.
No Warrant may be exercised after 5:00
p.m., New York time, on the Expiration Date, at which time all Warrants
evidenced hereby, unless exercised prior thereto, hereby shall thereafter be
void.
The Warrants evidenced by this Warrant
Certificate are part of a duly authorized issue of Warrants issued pursuant to
the Warrant Agreement, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the
Warrants.
15
The Warrant Agreement provides that
upon the occurrence of certain events the Exercise Price and the type and number
of the Company's securities issuable thereupon may, subject to certain
conditions, be adjusted. In such event, the Company will, at the
request of the holder, issue a new Warrant Certificate evidencing the adjustment
in the Exercise Price and the number and type of securities issuable upon the
exercise of the Warrants; provided, however, that the failure of the Company to
issue such new Warrant Certificates shall not in any way change, alter, or
otherwise impair, the rights of the holder as set forth in the Warrant
Agreement.
Upon due presentment for registration
of transfer of this Warrant Certificate at an office or agency of the Company, a
new Warrant Certificate of Warrant Certificates of like tenor and evidencing in
the aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of
the Warrants evidenced by this Certificate, the Company shall forthwith issue to
the holder hereof a new Warrant Certificate representing such numbered
unexercised Warrants.
The Company may deem and treat the
registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
holder(s) hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.
All terms used in this Warrant
Certificate which are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated:
August 27, 2008
|
Attest:
|
Xxxxx
World Trade, Ltd.
|
||||
|
/s/
|
By:
|
/s/
|
|||
|
Name:
Xxxx Xxxxx
|
Name:
Xxxxx X. Xxxxxxxx
|
||||
|
Title:
Secretary
|
Title:
Chief Executive
Officer
|
||||
16
[FORM
OF ASSIGNMENT]
(To be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.)
FOR VALUE
RECEIVED Xxxxxxxx Xxxxxx hereby sells, assigns and unto
(Please
print name and address of transferee)
this
Warrant Certificate, together with all right, title and interest therein, and
does hereby reasonably constitute and appoint ___________________________, as
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
|
Xxxxxxxx
Xxxxxx
|
||
|
Date:
_________________
|
Signature:
|
|
|
(Signature
must conform in all respects
|
||
|
to
name of holder as specified on the
|
||
|
face
of the Warrant Certificate.)
|
||
|
(Insert
Social Security or Other Identifying
|
||
|
Number
of Assignee)
|
||
17
[FORM
OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably
elects to exercise the right, represented by this Warrant Certificate, to
purchase:
Shares
Series
B Warrants
and
herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Xxxxx World
Trade, Ltd., in the amount of $2.00 per share, or a total of ______________
shares of the Securities issuable upon exercise of the Warrant, all in
accordance with the terms of the Warrant Agreement dated August 27, 2008 between
Xxxxxxxx Xxxxxx and Xxxxx World Trade, Ltd. The undersigned request
that a certificate for such Securities be registered in the name of
whose address is and that such Certificate be delivered to
whose
address is .
|
Date:
_________________
|
Signature:
|
|
|
(Signature
must conform in all respects
|
||
|
to
name of holder as specified on the
|
||
|
face
of the Warrant Certificate.)
|
||
|
|
||
|
(Insert
Social Security or Other Identifying
|
||
|
Number
of Assignee)
|
||
18