EXHIBIT 4.5
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NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
SERIES C WARRANT
To Purchase $________ Principal Amount of
Series A Debentures and Series A Warrants
WESTERN POWER & EQUIPMENT CORP.
THIS SERIES C WARRANT (the "Warrant") certifies that, for value
received, _____________ (the "Holder"), is entitled, upon the terms and subject
to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after the date hereof (the "Initial Exercise Date") and on or prior
to the earlier of the close of business on (i) the 18 month anniversary of the
Effective Date and (ii) the three year anniversary of the date hereof (the
"Termination Date") but not thereafter, to subscribe for and purchase from
Western Power & Equipment Corp., a Delaware corporation (the "Company"), at face
value (a) up to $_____________[AMOUNT EQUAL TO 25% OF HOLDER'S SERIES A
SUBSCRIPTION AMOUNT] principal amount of a Series A Debenture at an initial
conversion price equal to the then Conversion Price of the Series A Debenture
(the "Debenture Conversion Price") (subject to adjustment hereunder and
thereunder) (the "Debenture") and (b) Series A Warrants at an exercise price of
equal to the then Exercise Price of the Series A Warrant (the "Warrant Exercise
Price") (subject to adjustment hereunder and thereunder) (the "Warrant"). Upon
the purchase hereunder of Debenture, the Holder shall receive a Warrant to
purchase a number of shares of Common Stock equal to 35% of the shares of Common
Stock issuable upon conversion in full of such Debenture. The Debenture and
Warrant shall be in the form of the Series A Debenture and Series A Warrants
(with the same rights, privileges and preferences set forth in the Transaction
Documents, including without limitation, the Series A Debentures and the Series
A Warrant) issued pursuant to the Purchase Agreement, MUTATIS MUTANDIS. The
Debenture and the Warrant shall be collectively referred to as the "Securities."
The Warrant Exercise Price and the Debenture Conversion Price shall be
collectively referred to herein as the "Conversion Price."
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Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the "Purchase Agreement"), dated June 8, 2005, among the
Company and the Purchasers signatory thereto.
Section 2. Exercise.
a) Exercise of this Warrant. Exercise of the purchase
rights represented by this Warrant may be made, in whole or in part,
at any time or times on or after the Initial Exercise Date and on or
before the Termination Date by delivery to the Company of a duly
executed facsimile copy of the Notice of Exercise Form annexed
hereto (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the
address of such Holder appearing on the books of the Company) and
the payment of the aggregate principal amount of the Debenture
thereby purchased by wire transfer or cashier's check drawn on a
United States bank. Upon exercise of the Warrant, the Company shall
issue a Debenture with a principal amount equal to 25% of the
initial principal amount of such Holder's Series A Debenture, as
issued pursuant to the Purchase Agreement and the Warrant to
purchase a number of shares of Common Stock equal to 35% of the
shares of Common Stock issuable upon conversion of such Debenture.
b) Mechanics of Exercise.
i. Authorization of Debenture and the Warrant.
The Company covenants that during the period this Warrant
is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to
provide for the issuance of all of the shares of Common
Stock underlying the Debenture and Warrant (the
collectively, "Conversion Shares"). The Company further
covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged
with the duty of executing certificates to execute and
issue the necessary certificates for the Securities upon
the exercise of the purchase rights under this Warrant and
certificates upon conversion and exercise of the
Securities. The Company covenants that the Securities
which may be issued upon the exercise of the purchase
rights represented by this Warrant and the Conversion
Shares issuable thereunder will, upon exercise of the
purchase rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue). The
Company will take all such reasonable action as may be
necessary to assure that the Securities and Conversion
Shares may be issued as provided herein without violation
of any applicable law or regulation, or of any
requirements of the Trading Market upon which the Common
Stock may be listed.
ii. Delivery of Certificates Upon Exercise.
Certificates for the Securities purchased hereunder shall
be delivered to the Holder within 5 Trading Days from the
delivery to the Company of the Notice of Exercise
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Form and surrender of this Warrant ("Securities Delivery
Date"), provided that such delivery and surrender occurs
before 12:00 Noon EST on such date. This Warrant shall be
deemed to have been exercised on the date the payment of
the Exercise Price is received by the Company. The
Securities shall be deemed to have been issued, and Holder
or any other person so designated to be named therein
shall be deemed to have become a holder of record of such
security for all purposes, as of the date the Warrant has
been exercised by payment to the Company of the Exercise
Price and all taxes required to be paid by the Holder, if
any, pursuant to Section 2(b)(v) prior to the issuance of
such security, have been paid.
iii. Delivery of New Warrants Upon Exercise.
If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate
or certificates representing the Securities, deliver to
Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased Securities called for by this
Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
iv. Rescission Rights. If the Company fails to
deliver to the Holder a certificate or certificates
representing the Securities pursuant to this Section
2(b)(iv) by the Securities Delivery Date, then the Holder
will have the right to rescind such exercise.
v. Charges, Taxes and Expenses. Issuance of
certificates for Securities shall be made without charge
to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in
the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the
event certificates for Securities are to be issued in a
name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the
Holder; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
vi. Closing of Books. The Company will not
close its records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof or
the conversion of the Securities pursuant to the terms
hereof.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time
while this Warrant is outstanding: (A) pays a stock dividend or
otherwise make a distribution or distributions on shares of its
Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt,
shall not
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include any shares of Common Stock issued by the Company pursuant to
the Securities), (B) subdivides outstanding shares of Common Stock
into a larger number of shares, (C) combines (including by way of
reverse stock split) outstanding shares of Common Stock into a
smaller number of shares, or (D) issues by reclassification of
shares of the Common Stock any shares of capital stock of the
Company, then in each case the Conversion Price shall be multiplied
by a fraction of which the numerator shall be the number of shares
of Common Stock (excluding treasury shares, if any) outstanding
immediately before such event and of which the denominator shall be
the number of shares of Common Stock outstanding immediately after
such event. Any adjustment made pursuant to this Section 3(a) shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
re-classification.
b) Subsequent Equity Sales. If the Company or any
Subsidiary thereof, as applicable, at any time while this Warrant is
outstanding, shall offer, sell, grant any option to purchase or
offer, sell or grant any right to reprice its securities, or
otherwise dispose of or issue (or announce any offer, sale, grant or
any option to purchase or other disposition) any Common Stock or
Common Stock Equivalents entitling any Person to acquire shares of
Common Stock, at an effective price per share less than the then
Conversion Price (such lower price, the "Base Share Price" and such
issuances collectively, a "Dilutive Issuance"), as adjusted
hereunder (if the holder of the Common Stock or Common Stock
Equivalents so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants,
options or rights per share which is issued in connection with such
issuance, be entitled to receive shares of Common Stock at an
effective price per share which is less than the Conversion Price,
such issuance shall be deemed to have occurred for less than the
Conversion Price on such date of the Dilutive Issuance), then, the
Conversion Price shall be reduced and only reduced to equal the Base
Share Price and the number of shares of Common Stock issuable upon
exercise of the Warrant issuable hereunder shall be increased such
that the aggregate Warrant Exercise Price payable hereunder, after
taking into account the decrease in the Warrant Exercise Price,
shall be equal to the aggregate Warrant Exercise Price prior to such
adjustment. Such adjustment shall be made whenever such Common Stock
or Common Stock Equivalents are issued. Notwithstanding the
foregoing, no adjustments shall be made, paid or issued under this
Section 3(b) in respect of an Exempt Issuance. The Company shall
notify the Holder in writing, no later than the Trading Day
following the issuance of any Common Stock or Common Stock
Equivalents subject to this section, indicating therein the
applicable issuance price, or of applicable reset price, exchange
price, conversion price and other pricing terms (such notice the
"Dilutive Issuance Notice"). For purposes of clarification, whether
or not the Company provides a Dilutive Issuance Notice pursuant to
this Section 3(b), upon the occurrence of any Dilutive Issuance,
after the date of such Dilutive Issuance the Holder is entitled to
receive a number of securities based upon the Base Share Price
regardless of whether the Holder accurately refers to the Base Share
Price in the Notice of Exercise.
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c) Pro Rata Distributions. If the Company, at any time
while this Warrant is outstanding, but no later than the Termination
Date, distributes to all holders of Common Stock (and not to
Holders) evidences of its indebtedness or assets (including cash and
cash dividends) or rights or warrants to subscribe for or purchase
any security other than the Common Stock (which shall be subject to
Section 3(b), then in each such case the Conversion Price shall be
adjusted by multiplying such Conversion Price in effect immediately
prior to the record date fixed for determination of stockholders
entitled to receive such distribution by a fraction of which the
denominator shall be the VWAP determined as of the record date
mentioned above, and of which the numerator shall be such VWAP on
such record date less the then per share fair market value at such
record date of the portion of such assets or evidence of
indebtedness so distributed applicable to one outstanding share of
the Common Stock as determined by the Board of Directors in good
faith. In either case the adjustments shall be described in a
statement provided to the Holder of the portion of assets or
evidences of indebtedness so distributed or such subscription rights
applicable to one share of Common Stock. Such adjustment shall be
made whenever any such distribution is made and shall become
effective immediately after the record date mentioned above.
d) 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 Person, (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 Person) is
completed pursuant to which holders of Common Stock are permitted to
tender or exchange their shares for other securities, cash or
property, or (D) 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 upon conversion or
exercise of the Securities, as applicable, for each Conversion Share
that would have been issuable upon such exercise and then subsequent
conversion immediately prior to the occurrence of such Fundamental
Transaction, at the option of the Holder, (a) upon conversion or
exercise of the Securities, 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 the underlying Securities are convertible
immediately prior to such event or (b) if the Company is acquired in
an all cash transaction, cash equal to the value of this Warrant as
determined in accordance with the Black-Scholes option pricing
formula. For purposes of any such deemed conversion, the
determination of the Conversion 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 Conversion 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
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to the Alternate Consideration it receives upon any conversion or
exercise of the Securities underlying 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 right ultimately into
Alternate Consideration. The terms of any agreement pursuant to
which a Fundamental Transaction is effected shall include terms
requiring any such successor or surviving entity to comply with the
provisions of this Section 3(d) and insuring that this Warrant (or
any such replacement security) will be similarly adjusted upon any
subsequent transaction analogous to a Fundamental Transaction.
e) Calculations. All calculations and adjustments to the
Conversion Price under this Section 3 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock
deemed to be issued and outstanding as of a given date shall be the
sum of the number of shares of Common Stock (excluding treasury
shares, if any) issued and outstanding..
f) Voluntary Adjustment By Company. The Company may at any
time during the term of this Warrant reduce the then current
Conversion Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
g) Notice to Holders.
i. Adjustment to Conversion Price. Whenever
the Conversion Price is adjusted pursuant to this Section
3, the Company shall promptly mail to each Holder a notice
setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring
such adjustment.
ii. Notice to Allow Exercise by Xxxxxx. If (A)
the Company shall declare a dividend (or any other
distribution) on the Common Stock; (B) the Company shall
declare a special nonrecurring cash dividend on or a
redemption of the Common Stock; (C) the Company shall
authorize the granting to all holders of the Common Stock
rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights; (D) the
approval of any stockholders of the Company shall be
required in connection with any reclassification of the
Common Stock, any consolidation or merger to which the
Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, of any
compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; (E) the
Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of
the Company; then, in each case, the Company shall cause
to be mailed to the Holder at its last address as it shall
appear upon the Warrant Register of the Company, at least
20 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x)
the date
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on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or
if a record is not to be taken, the date as of which the
holders of the Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or
warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that
holders of the Common Stock of record shall be entitled to
exchange their shares of the Common Stock for securities,
cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or
share exchange; provided, that the failure to mail such
notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action
required to be specified in such notice. The Holder is
entitled to exercise this Warrant during the 20-day period
commencing on the date of such notice to the effective
date of the event triggering such notice.
Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with any
applicable securities laws and the conditions set forth in Sections
5(a) and 4(e) hereof and to the provisions of Section 4.1 of the
Purchase Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant at
the principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached hereto
duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination or
denominations specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be
cancelled. A Warrant, if properly assigned, may be exercised by a
new holder for the purchase of Securities without having a new
Warrant issued.
b) New Warrants. This Warrant may be divided or combined
with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names
and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice.
c) Warrant Register. The Company shall register this
Warrant, upon records to be maintained by the Company for that
purpose (the "Warrant Register"), in the name of the record Holder
hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary
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d) Transfer Restrictions. If, at the time of the surrender
of this Warrant in connection with any transfer of this Warrant, the
transfer of this Warrant shall not be registered pursuant to an
effective registration statement under the Securities Act and under
applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such transfer (i) that the
Holder or transferee of this Warrant, as the case may be, furnish to
the Company a written opinion of counsel (which opinion shall be in
form, substance and scope customary for opinions of counsel in
comparable transactions) to the effect that such transfer may be
made without registration under the Securities Act and under
applicable state securities or blue sky laws, (ii) that the holder
or transferee execute and deliver to the Company an investment
letter in form and substance acceptable to the Company and (iii)
that the transferee be an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) promulgated under the
Securities Act or a qualified institutional buyer as defined in Rule
144A(a) under the Securities Act.
Section 5. Miscellaneous.
a) Title to the Warrant. Prior to the Termination Date and
subject to compliance with applicable laws and Section 4 of this
Warrant, this Warrant and all rights hereunder are transferable, in
whole or in part, at the office or agency of the Company by the
Holder in person or by duly authorized attorney, upon surrender of
this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in
form and substance reasonably satisfactory to the Company.
b) No Rights as Shareholder Until Exercise. This Warrant
does not entitle the Holder to any voting rights or other rights as
a shareholder of the Company prior to the exercise hereof. Upon the
surrender of this Warrant and the payment of the aggregate
principal, the Securities so purchased shall be and be deemed to be
issued to such Xxxxxx as the record owner of such shares as of the
close of business on the later of the date of such surrender or
payment.
c) Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate relating to the
Securities, and in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to it (which, in the case of the
Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu
of such Warrant or stock certificate.
d) Saturdays, Sundays, Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a
legal holiday, then such action may be taken or such right may be
exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
e) Authorized Shares.
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The Company covenants that during the period
the Warrant is outstanding, it will reserve from its
authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the shares of
Common Stock issuable upon conversion and exercise, as
applicable, of the Securities. The Company further
covenants that its issuance of this Warrant shall
constitute full authority to its officers who are
charged with the duty of executing certificates to
execute and issue the necessary certificates for the
Securities upon the exercise of the purchase rights
under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that
such Securities and Conversion Shares may be issued as
provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed.
Except and to the extent as waived or
consented to by the Holder, the Company shall not by any
action, including, without limitation, amending its
certificate of incorporation or through any
reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this
Warrant or the Securities, but will at all times in good
faith assist in the carrying out of all such terms and
in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth
in this Warrant and the Securities against impairment.
Without limiting the generality of the foregoing, the
Company will (a) take all such action as may be
necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable
Securities upon the exercise of this Warrant and
Conversion Shares upon conversion and exercise of the
Securities, and (b) use commercially reasonable efforts
to obtain all such authorizations, exemptions or
consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant
and the Securities.
Before taking any action which would result
in an adjustment in the Securities for which this
Warrant is exercisable or in the Conversion Price, the
Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies
having jurisdiction thereof.
f) Jurisdiction. All questions concerning the
construction, validity, enforcement and interpretation of this
Warrant shall be determined in accordance with the provisions of the
Purchase Agreement.
g) Restrictions. The Holder acknowledges that the
Securities acquired upon the exercise of this Warrant, if not
registered, will have restrictions upon resale imposed by state and
federal securities laws.
h) Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of
Holder shall operate as a waiver of such right
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or otherwise prejudice Xxxxxx's rights, powers or remedies,
notwithstanding the fact that all rights hereunder terminate on the
Termination Date. If the Company willfully and knowingly fails to
comply with any provision of this Warrant, which results in any
material damages to the Holder, the Company shall pay to Holder such
amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
i) Notices. Any notice, request or other document required
or permitted to be given or delivered to the Holder by the Company
shall be delivered in accordance with the notice provisions of the
Purchase Agreement.
j) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Warrant
or purchase Securities, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
k) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this
Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by
it of the provisions of this Warrant and hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
l) Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon
the successors of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be
for the benefit of all Holders from time to time of this Warrant and
shall be enforceable by any such Holder or holder of Securities.
m) Amendment. This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company
and the Holder.
n) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant
shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or
the remaining provisions of this Warrant.
o) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: June 8, 2005
WESTERN POWER & EQUIPMENT CORP., INC.
By:_____________________________________
Name:
Title:
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NOTICE OF EXERCISE
TO: WESTERN POWER & EQUIPMENT CORP.
(1) The undersigned hereby elects to purchase $________ principal
amount of Debenture and Warrants to purchase _____ shares of Common Stock of
Western Power & Equipment Corp. pursuant to the terms of the attached Warrant
and tenders herewith payment of the Exercise Price in full, together with all
applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box) in lawful
money of the United States; or
(3) Please issue a certificate or certificates representing said
Securities in the name of the undersigned or in such other name as is specified
below:
___________________________________________
The Securities shall be delivered to the following:
___________________________________________
___________________________________________
___________________________________________
(4) Accredited Investor. The undersigned is an "accredited investor"
as defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE OF HOLDER]
____________
Name of Investing Entity: ______________________________________________________
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: _________________________
Name of Authorized Signatory: __________________________________________________
Title of Authorized Signatory: _________________________________________________
Date: __________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to exercise the Warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
