SUNOVIA ENERGY TECHNOLOGIES, INC. COMMON STOCK PURCHASE WARRANT
Exhibit
4.1
SUNOVIA
ENERGY TECHNOLOGIES, INC.
25,000,000
shares
Original
Issue Date: April 15, 2009
THIS
CERTIFIES THAT, FOR VALUE RECEIVED, EPIR Technologies, Inc. or its
registered assigns (“Holder”) is entitled to
purchase, on the terms and conditions hereinafter set forth, at any time or from
time to time from the date hereof until 5:00 p.m., Eastern Time, on the fifth
(5th) anniversary of the Original Issue Date set forth above, or if such date is
not a day on which the Company (as hereinafter defined) is open for business,
then the next succeeding day on which the Company is open for business (such
date is the “Expiration
Date”), but not thereafter, to purchase up to TWENTY-FIVE MILLION
(25,000,000) shares of the Common Stock, $0.001 par value per share (the “Common Stock”), of SUNOVIA ENERGY TECHNOLOGIES,
INC., a Nevada corporation (the “Company”), at $0.10 per share
(the “Exercise
Price”). Each share of Common Stock as to which this Warrant
is exercisable is a “Warrant
Share” and all such shares are collectively referred to as the “Warrant
Shares.”
Section
1. Exercise
of Warrant; Conversion of Warrant.
(a) This
Warrant may, at the option of Holder, be exercised in whole or in part from time
to time by delivery to the Company at its office at 0000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000 Attention: CFO, on or before 5:00 p.m., Eastern
Time, on the Expiration Date, (i) a written notice of such Holder's
election to exercise this Warrant (the “Exercise Notice”), which
notice may be in the form of the Notice of Exercise attached hereto, properly
executed and completed by Holder or an authorized officer thereof, (ii) a
check payable to the order of the Company, in an amount equal to the product of
the Exercise Price multiplied
by the number of Warrant Shares specified in the Exercise Notice, and
(iii) this Warrant (the items specified in (i), (ii), and (iii) are
collectively the “Exercise
Materials”).
(b) As
promptly as practicable, and in any event within five (5) business days after
its receipt of the Exercise Materials, Company shall execute or cause to be
executed and delivered to Holder a certificate or certificates representing the
number of Warrant Shares specified in the Exercise Notice, together with cash in
lieu of any fraction of a share, and if this Warrant is partially exercised, a
new warrant on terms and form substantially identical to the terms and form of
this Warrant for the unexercised balance of the Warrant Shares. The
stock certificate or certificates shall be registered in the name of
Holder. The date on which the Warrant shall be deemed to have been
exercised (the “Effective
Date”), and the date the person in whose name any certificate evidencing
the Common Stock issued upon the exercise hereof is issued shall be deemed to
have become the holder of record of such shares, shall be the date the Company
receives the Exercise Materials, irrespective of the date of delivery of a
certificate or certificates evidencing the Common Stock issued upon the
exercise, provided, however,
that if the Exercise Materials are received by the Company on a date on
which the stock transfer books of the Company are closed, the Effective Date
shall be the next succeeding date on which the stock transfer books are open.
All Warrant Shares issued upon the exercise or conversion of this Warrant
will, upon issuance, be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens, and charges with respect to the issuance
thereof. The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock solely for the purpose
of issuance upon the exercise of the Warrant, such number of shares of Common
Stock issuable upon the exercise of all of the purchase rights under the
Warrant.
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(c) In
the event that, during the term of this Warrant, the closing price on the NASDAQ
Over-The-Counter Bulletin Board for the Company’s common stock is $0.25 or more
per share for a period of twenty (20) consecutive trading days, then the
Company, in its sole discretion, may send the Holder a written notice demanding
that it exercise this Warrant within thirty (30) business days of the Holder's
receipt of such notice (the “Mandatory Exercise
Period”). If the Holder fails to notify the Company in writing
by on or before 5:00 p.m., Eastern Time on the last day of the Mandatory
Exercise Period of the Holder's desire to promptly exercise this Warrant, then
this Warrant shall expire.
Section
3. No
Stockholder Rights.
This
Warrant shall not entitle Holder hereof to any voting rights or other rights as
a stockholder of the Company.
Section
4. Transfer
of Securities.
(a) This
Warrant and the Warrant Shares and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon, or otherwise, shall not be transferable
except upon compliance with the provisions of the Securities Act of 1933, as
amended (the “Securities
Act”) and applicable state securities laws with respect to the transfer
of such securities. The Holder, by acceptance of this Warrant, agrees to
be bound by the provisions of Section 3 hereof and to indemnify and hold
harmless the Company against any loss or liability arising from the disposition
of this Warrant or the Warrant Shares issuable upon exercise hereof or any
interest in either thereof in violation of the provisions of this
Warrant.
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(b) Each
certificate for the Warrant Shares and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon or otherwise, and each certificate for any
such securities issued to subsequent transferees of any such certificate shall
(unless otherwise permitted by the provisions hereof) be stamped or otherwise
imprinted with a legend in substantially the following form:
“NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED UNTIL
(I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(II) THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES
ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.”
Section
5. Miscellaneous.
(a) The
terms of this Warrant shall be binding upon and shall inure to the benefit of
any successors or permitted assigns of the Company and Holder.
(b)
Except as otherwise provided herein, this Warrant and all rights hereunder are
transferable by the registered holder hereof in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant, properly
endorsed, to the Company. The Company may deem and treat the registered
holder of this Warrant at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
(c) Notwithstanding
any provision herein to the contrary, Holder may not sell, transfer, or
otherwise assign this Warrant unless (i) the Company is provided with an opinion
of counsel satisfactory in form and substance to the Company, to the effect that
such sale, transfer, or assignment would not violate the Securities Act or
applicable state securities laws, or (ii) in connection with the exercise of the
Warrant in accordance with the terms and conditions set forth
herein. Except as set forth in Section 1 hereof, this Warrant may not
be divided by the Holder into separate warrants.
(d) Any
notices, consents, waivers, or other communications required or permitted to be
given under the terms of this Warrant must be in writing and will be deemed to
have been delivered (a) upon receipt, when delivered personally, (b) upon
receipt, when sent by facsimile, provided a
copy is mailed by U.S. certified mail, return receipt requested, (c) three (3)
days after being sent by U.S. certified mail, return receipt requested, or (d)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications
shall be:
|
If
to Company:
|
Sunovia
Energy Technologies, Inc.
|
|||
| 0000 Xxxxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, Xxxxxxx 00000 Attention: CFO | ||||
| Attention: Chief Executive Officer | ||||
| Facsimile: ( ) - |
If to Holder, to the registered address
of Holder appearing on the books of the Company. Each party shall
provide five (5) days prior written notice to the other party of any change in
address, which change shall not be effective until actual receipt
thereof
(e) Upon
receipt of evidence reasonably satisfactory to the Company (an affidavit of the
Holder shall be satisfactory) of the ownership and the loss, theft, destruction
or mutilation of any certificate evidencing this Warrant, and in the case of any
such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Company, or, in the case of any such mutilation upon
surrender of such certificate, the Company shall (at Holder's expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the same rights represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate.
(f) The
provisions of the Warrant may not be amended without the prior written consent
of the Company and the Holder.
(g) The
corporate laws of the State of Florida shall govern all issues concerning the
relative rights of the Company and its stockholders. All other
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by the internal laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Florida or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of
Florida. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting the City of
Tampa, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Warrant and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If any provision of this Warrant
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Warrant in that jurisdiction or the validity or enforceability
of any provision of this Warrant in any other jurisdiction.
[Signature
on the following page]
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SIGNATURE
PAGE
TO
COMPANY
IN
WITNESS WHEREOF, the Company, has caused this Warrant to be executed in its name
by its duly authorized officers under seal, and to be dated as of the date first
above written.
| SUNOVIA ENERGY TECHNOLOGIES, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
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EXERCISE
OR CONVERSION NOTICE
[To be
signed only upon exercise of Warrant]
To: SUNOVIA ENERGY TECHNOLOGIES,
INC.
The
undersigned Holder of the attached Warrant, pursuant to the provisions set forth
in the attached Warrant, hereby irrevocably elects to exercise [all or a
portion] of the Warrant for, and to purchase thereunder, _____ shares of Common
Stock of SUNOVIA ENERGY TECHNOLOGIES, INC., issuable upon exercise of [all or a
portion] of said Warrant and hereby surrenders said Warrant.
The
Holder herewith delivers to SUNOVIA ENERGY TECHNOLOGIES, INC., a check in the
amount of $______ representing the Exercise Price for such
shares.
The
undersigned herewith requests that the certificates for such shares be issued in
the name of, and delivered to the undersigned, whose address is
________________________________.
Dated:
___________________
Holder:
____________________________________
____________________________________
By: _________________________________
Name:
___________________________
Title:
____________________________
NOTICE
The
signature above must correspond to the name as written upon the face of the
within Warrant in every particular, without alteration or enlargement or any
change whatsoever.
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COMPANY
ACKNOWLEDGEMENT
TO
CONVERSION
OR EXERCISE NOTICE
ACKNOWLEDGED
AND AGREED:
SUNOVIA
ENERGY TECHNOLOGIES, INC.
By: ______________________________________
Name:
Title:
Date:
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