EXHIBIT 4.5
COMMON STOCK WARRANT AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THIS WARRANT SHALL NOT CONSTITUTE AN OFFER
TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION
IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE SECURITIES ARE
"RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE
ACT PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
COMMON STOCK PURCHASE WARRANT
To Purchase Shares of Par Value Common Stock ("Common Stock") of
No. W__-__ ______ Shares
ICURIE, INC.
THIS CERTIFIES that, for value received, ____________ (the "Purchaser" or
"Holder") is entitled, upon the terms and subject to the conditions hereinafter
set forth, at any time on or after the date hereof and on or prior to 5:00 p.m.
New York City Time on the date that is five years after the date hereof (the
"Termination Date"), but not thereafter, to subscribe for and purchase from
iCurie, Inc., a Nevada corporation, (the "Company"), _______ shares (such shares
the "Warrant Shares") of common stock, par value $0.001, of the Company ("Common
Stock"), at an exercise price of $[1.10 or 1.32] per share (the "Exercise
Price"). The Exercise Price and the number of shares for which the Warrant is
exercisable shall be subject to adjustment as provided herein. This Warrant is
being issued in connection with the Holder's purchase of Series A Preferred
Stock of the Company as of the date hereof.
1. Title of Warrant. Prior to the expiration hereof and subject to compliance
with applicable laws, this Warrant and all rights hereunder are transferable, in
whole or in part, at the office or agency of the Company by the Holder hereof in
person or by duly authorized attorney, upon surrender of this Warrant together
with (a) the Assignment Form annexed hereto properly endorsed, and (b) any other
documentation reasonably necessary to satisfy the Company that such transfer is
in compliance with all applicable securities laws. The term "Holder" shall refer
to the Purchaser or any subsequent transferee of this Warrant.
2. Authorization of Shares. The Company covenants that all shares of Common
Stock which may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this Warrant and
payment of the Exercise Price as set forth herein will 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 or otherwise specified
herein).
3. Exercise of Warrant.
(a) The Holder may exercise this Warrant, in whole or in part, at any time and
from time to time, by delivering (which may be by facsimile) to the offices of
the Company or any transfer agent for the Common Stock on or prior to the
Termination Date, this Warrant together with a Notice of Exercise in the form
annexed hereto ("Notice of Exercise") specifying the number of Warrant Shares
with respect to which this Warrant is being exercised, together with payment in
cash to the Company of the Exercise Price therefor.
(b) In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised and/or surrendered, and the Company, if requested by
Holder and at its expense, shall within five (5) business days issue and deliver
to the Holder a new Warrant of like tenor in the name of the Holder or as the
Holder (upon payment by Holder of any applicable transfer taxes) may request,
reflecting such adjusted Warrant Shares.
(c) Certificates for shares of Common Stock purchased hereunder shall be
promptly delivered to the Holder hereof, but in no event more than five (5)
business days after the date on which this Warrant shall have been exercised as
aforesaid.
(d) In lieu of delivering physical certificates representing the Warrant Shares
issuable upon exercise of this Warrant, provided the Company's transfer agent is
participating in the Depository Trust Company ("DTC") Fast Automated Securities
Transfer ("FAST") program, and provided the Company is eligible to participate
in the FAST program, upon request of the Holder, the Company shall use its best
efforts to cause its transfer agent to electronically transmit the Warrant
Shares issuable upon exercise to the Holder, by crediting the account of the
Holder's prime broker with DTC through its Deposit Withdrawal Agent Commission
("DWAC") system. The time periods for delivery described above shall apply to
the electronic transmittals through the DWAC system. The Company agrees to
coordinate with DTC to accomplish this objective, provided the Company is
eligible to utilize the services of DTC and is eligible to participate in the
FAST program.
(e) In the event that the Registration Statement covering the Common Stock for
which this Warrant is exercisable has not been declared effective by the first
anniversary of the Issue Date of this Warrant, the Holder may exercise this
Warrant by the exchange of this Warrant in whole or in part (with the Cashless
Exercise subscription form in the form annexed hereto duly executed) (a
"Cashless Exercise") at the address of the Company set forth herein. Such
presentation and exchange shall be deemed a waiver of the Holder's obligation to
pay the Exercise Price or, in the case of a partial exercise of this Warrant, of
the portion of the Exercise Price that would otherwise be payable in connection
with such partial exercise. Upon presentment of this Warrant in connection with
a Cashless Exercise, the number of Warrant Shares subject to this Warrant shall
be reduced by the number of Warrant Shares specified on the Cashless Exercise
subscription form, and in exchange for such reduction the Holder shall receive
the number of Warrant Shares, as the case may be, specified on the Cashless
Exercise subscription form (up to the total number of Warrant Shares which are
subject to this Warrant) multiplied by a fraction, the numerator of which shall
be the difference between the then current Fair Market Value (as defined in
Section 12(b)) per share of the Common Stock and the Exercise
2
Price per share, and the denominator of which shall be the then current Fair
Market Value per share of Common Stock.
(f) The term "Trading Day" means (i) if the Common Stock is not listed on the
New York or American Stock Exchange but sale prices of the Common Stock are
reported on Nasdaq National Market or another automated quotation system, a day
on which trading is reported on the principal automated quotation system on
which sales of the Common Stock are reported, (ii) if the Common Stock is listed
on the New York Stock Exchange or the American Stock Exchange, a day on which
there is trading on such stock exchange, or (iii) if the foregoing provisions
are inapplicable, a day on which quotations are reported by National Quotation
Bureau Incorporated.
4. No Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
issuance of a fractional share upon any exercise hereunder, the Company will
either round up to nearest whole number of shares or pay the cash value of that
fractional share, which cash value shall be calculated on the basis of the
average closing price of the Common Stock during the five (5) Trading Days
immediately preceding the date of exercise.
5. Charges, Taxes and Expenses. Issuance of certificates for shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
Holder hereof 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 of this Warrant or in such name or names as may be directed by the
Holder of this Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the name of the
Holder of this Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
hereof; and provided further, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issuance of any Warrant certificates or any certificates for the Warrant Shares
other than the issuance of a Warrant Certificate to the Holder in connection
with the Holder's surrender of a Warrant Certificate upon the exercise of all or
less than all of the Warrants evidenced thereby.
6. Closing of Books. The Company will at no time close its shareholder books or
records in any manner which interferes with the timely exercise of this Warrant.
7. No Rights as Shareholder until Exercise. Subject to Section 12 of this
Warrant and the provisions of any other written agreement between the Company
and the Purchaser, the Purchaser shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares or any other securities of
the Company that may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the
Purchaser, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised as provided herein. However, at the time of
the exercise of this Warrant pursuant to Section 3
3
hereof, the Warrant Shares so purchased hereunder shall be deemed to be issued
to such Holder as the record owner of such shares as of the close of business on
the date on which this Warrant shall have been exercised.
8. Assignment and Transfer of Warrant. This Warrant may be assigned by the
surrender of this Warrant and the Assignment Form annexed hereto duly executed
at the office of the Company (or such other office or agency of the Company or
its transfer agent as the Company may designate by notice in writing to the
registered Holder hereof at the address of such Holder appearing on the books of
the Company); provided, however, that this Warrant may not be resold or
otherwise transferred except (i) in a transaction registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) in a transaction
pursuant to an exemption, if available, from registration under the Act and
whereby, if reasonably requested by the Company, an opinion of counsel
reasonably satisfactory to the Company is obtained by the Holder of this Warrant
to the effect that the transaction is so exempt.
9. Loss, Theft, Destruction or Mutilation of Warrant; Exchange. The Company
represents warrants and covenants that (a) upon receipt by the Company of
evidence and/or indemnity reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any Warrant or stock certificate representing the
Warrant Shares, and in case of loss, theft or destruction, of indemnity
reasonably satisfactory to it, and (b) 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 this Warrant or stock certificate, without any charge
therefor. This Warrant is exchangeable at any time for an equal aggregate number
of Warrants of different denominations, as requested by the holder surrendering
the same, or in such denominations as may be requested by the Holder following
determination of the Exercise Price. No service charge will be made for such
registration or transfer, exchange or reissuance.
10. 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 legal holiday.
11. Effect of Certain Events. If at any time while this Warrant or any portion
thereof is outstanding and unexpired there shall be a transaction (by merger or
otherwise) in which more than 50% of the voting power of the Company is disposed
of (collectively, a "Sale or Merger Transaction"), the Holder of this Warrant
shall have the right thereafter to purchase, by exercise of this Warrant and
payment of the aggregate Exercise Price in effect immediately prior to such
action, the kind and amount of shares and other securities and property which it
would have owned or have been entitled to receive after the happening of such
transaction had this Warrant been exercised immediately prior thereto, subject
to further adjustment as provided in Section 12.
12. Adjustments of Exercise Price and Number of Warrant Shares; Blocker
Provision. The number of and kind of securities purchasable upon exercise of
this Warrant and the Exercise Price shall be subject to adjustment from time to
time as set forth in this Section 12.
4
(a) Subdivisions, Combinations, Stock Dividends and other Issuances. If the
Company shall, at any time while this Warrant is outstanding, (i) pay a stock
dividend or otherwise make a distribution or distributions on any equity
securities (including instruments or securities convertible into or exchangeable
for such equity securities) in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock into a larger number of shares, or (iii)
combine outstanding Common Stock into a smaller number of shares, then the
Exercise Price shall be multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding before such event and the
denominator of which shall be the number of shares of Common Stock outstanding
after such event. Any adjustment made pursuant to this Section 12(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 or
combination. The number of shares which may be purchased hereunder shall be
increased proportionately to any reduction in Exercise Price pursuant to this
paragraph 12(a), so that after such adjustments the aggregate Exercise Price
payable hereunder for the increased number of shares shall be the same as the
aggregate Exercise Price in effect just prior to such adjustments.
(b) Other Distributions. If at any time after the date hereof the Company
distributes to holders of its Common Stock, other than as part of its
dissolution, liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
Common Stock), then the number of Warrant Shares for which this Warrant is
exercisable shall be increased to equal: (i) the number of Warrant Shares for
which this Warrant is exercisable immediately prior to such event, (ii)
multiplied by a fraction, (A) the numerator of which shall be the Fair Market
Value (as defined below) per share of Common Stock on the record date for the
dividend or distribution, and (B) the denominator of which shall be the Fair
Market Value price per share of Common Stock on the record date for the dividend
or distribution minus the amount allocable to one share of Common Stock of the
value (as jointly determined in good faith by the Board of Directors of the
Company and the Holder) of any and all such evidences of indebtedness, shares of
capital stock, other securities or property, so distributed. For purposes of
this Warrant, "Fair Market Value" shall equal the average closing trading price
of the Common Stock on the principal securities exchange or trading market on
which the Common Stock is traded, listed or quoted (the "Principal Market") for
the 5 Trading Days preceding the date of determination or, if the Common Stock
is not listed or admitted to trading on any Principal Market, and the average
price cannot be determined as contemplated above, the Fair Market Value of the
Common Stock shall be as reasonably determined in good faith by the Company's
Board of Directors and the Holder. The Exercise Price shall be reduced to equal:
(i) the Exercise Price in effect immediately before the occurrence of any event
(ii) multiplied by a fraction, (A) the numerator of which is the number of
Warrant Shares for which this Warrant is exercisable immediately before the
adjustment, and (B) the denominator of which is the number of Warrant Shares for
which this Warrant is exercisable immediately after the adjustment.
(c) Merger, etc. If at any time after the date hereof there shall be a merger or
consolidation of the Company with or into or a transfer of all or substantially
all of the assets of the Company to another entity, then the Holder shall be
entitled to receive upon or after such transfer, merger or consolidation
becoming effective, and upon payment of the Exercise Price then in effect, the
number of shares or other securities or property of the Company or of the
successor corporation
5
resulting from such merger or consolidation, which would have been received by
the Holder for the shares of stock subject to this Warrant had this Warrant been
exercised just prior to such transfer, merger or consolidation becoming
effective or to the applicable record date thereof, as the case may be. The
Company will not merge or consolidate with or into any other corporation, or
sell or otherwise transfer its property, assets and business substantially as an
entirety to another corporation, unless the corporation resulting from such
merger or consolidation (if not the Company), or such transferee corporation, as
the case may be, shall expressly assume in writing the due and punctual
performance and observance of each and every covenant and condition of this
Warrant to be performed and observed by the Company.
(d) Reclassification, etc. If at any time after the date hereof there shall be a
reorganization or reclassification of the securities as to which purchase rights
under this Warrant exist into the same or a different number of securities of
any other class or classes, then the Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares or other
securities or property resulting from such reorganization or reclassification,
which would have been received by the Holder for the shares of stock subject to
this Warrant had this Warrant at such time been exercised.
(e) Exercise Price Adjustment. In the event that subsequent to the date hereof,
the Company issues or sells any Common Stock, any Convertible Securities (as
defined below), or any warrants or other rights to subscribe for or to purchase
or any options for the purchase of its Common Stock or any such Convertible
Securities (other than (i) securities which are issued pursuant to the
transactions contemplated by that certain Share Exchange Agreement dated July 8,
2005 by and among the Company, iCurie UK and certain additional parties, or that
certain Preferred Stock Purchase Agreement dated as of the date hereof by and
among the Company and certain additional parties hereto, (ii) shares of Common
Stock or options to purchase such shares issued to employees, consultants,
officers or directors in accordance with stock plans approved by the Board of
Directors, (iii) shares of Common Stock issuable under options or warrants that
are outstanding as of the date hereof, (iv) shares of Common Stock issued
pursuant to a stock dividend, split or other similar transaction) ("Additional
Common Stock"), and at an effective price per share of Common Stock which is
less than $0.88 (subject to appropriate adjustments for stock splits, stock
dividends, combinations, reclassifications and other similar transactions after
the date hereof) per share (the "New Issuance Price"), then the Exercise Price
shall be reduced, effective concurrently with such issuance or sale of such
Additional Common Stock, to an amount determined by multiplying the Exercise
Price then in effect by a fraction, (A) the numerator of which shall be the sum
of (1) the number of shares of Common Stock (determined on a fully diluted
basis) outstanding immediately prior to such issuance or sale, plus (2) the
number of shares of Common Stock which the aggregate consideration received by
the Company for such Additional Common Stock would purchase at a per share
purchase price of $0.88 (subject to appropriate adjustments for stock splits,
stock dividends, combinations, reclassifications and other similar transactions
after the date hereof), and (B) the denominator of which shall be the number of
shares of Common Stock (determined on a fully diluted basis) outstanding
immediately after such issuance or sale.
For the purposes of the foregoing adjustments, in the case of the issuance of
any convertible securities, warrants, options or other rights to subscribe for
or to purchase or exchange for, shares
6
of Common Stock ("Convertible Securities"), the maximum number of shares of
Common Stock issuable upon exercise, exchange or conversion of such Convertible
Securities shall be deemed to be outstanding, provided that no further
adjustment shall be made upon the actual issuance of Common Stock upon exercise,
exchange or conversion of such Convertible Securities.
In the event of any adjustment in the number of Warrant Shares issuable
hereunder upon exercise, the Exercise Price shall be inversely proportionately
increased or decreased as the case may be, such that aggregate purchase price
for Warrant Shares upon full exercise of this Warrant shall remain the same.
Similarly, in the event of any adjustment in the Exercise Price, the number of
Warrant Shares issuable hereunder upon exercise shall be inversely
proportionately increased or decreased as the case may be, such that aggregate
purchase price for Warrant Shares upon full exercise of this Warrant shall
remain the same.
(f) Blocker Provision. Notwithstanding anything to the contrary contained
herein, the number of shares of Common Stock that may be acquired by the Holder
upon any exercise of this Warrant (or otherwise in respect hereof) shall be
limited to the extent necessary to insure that, following such exercise (or
other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its affiliates and any other persons whose beneficial
ownership of Common Stock would be aggregated with the Holder's for purposes of
Section 13(d) of the Exchange Act, does not exceed 9.999% of the total number of
issued and outstanding shares of Common Stock (including for such purpose the
shares of Common Stock issuable upon such exercise). For such purposes,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. Each delivery
of a Notice of Exercise hereunder will constitute a representation by the Holder
that it has evaluated the limitation set forth in this paragraph and determined
that issuance of the full number of Warrant Shares requested in such Notice of
Exercise is permitted under this paragraph. This provision shall not restrict
the number of shares of Common Stock which a Holder may receive or beneficially
own in order to determine the amount of securities or other consideration that
such Holder may receive in the event of a merger or other business combination
or reclassification involving the Company. This restriction may not be waived.
13. Voluntary Adjustment by the Company. The Company may at its option, at any
time during the term of this Warrant, reduce but not increase the then current
Exercise Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or number or
kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted, the Company shall promptly mail to
the Holder of this Warrant a notice setting forth the number of Warrant Shares
(and other securities or property) purchasable upon the exercise of this Warrant
and the Exercise Price of such Warrant Shares after such adjustment and setting
forth the computation of such adjustment and a brief statement of the facts
requiring such adjustment.
15. Mandatory Redemption. Notwithstanding anything to the contrary provided
herein, this Warrant may be redeemed by the Company for a payment of $0.001 per
Warrant Share upon written notice to the Holder within thirty (30) days after
the Common Stock has traded or is
7
quoted on its Principal Market at a price per share equal to three (3) times the
then current Exercise Price for twenty (20) consecutive Trading Days and such
shares are traded at an average daily dollar volume of $250,000 (average share
price times the average volume) during the same twenty (20) day trading period
and the Common Stock for which the Warrant is exercisable is subject to an
effective registration statement relating to the resale of such common stock at
the time of the mandatory redemption.
16. Authorized Shares. The Company covenants that during the period the Warrant
is outstanding and exercisable, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the
Warrant Shares upon the exercise of any and all purchase rights under this
Warrant. 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 stock certificates to execute and issue the necessary certificates for
the Warrant Shares 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 Warrant Shares may be issued as provided herein without violation of
any applicable law, regulation, or rule of any applicable market or exchange.
17. Compliance with Securities Laws. (a) The Holder hereof acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, if not registered (or
if no exemption from registration exists), will have restrictions upon resale
imposed by state and federal securities laws. Each certificate representing the
Warrant Shares issued to the Holder upon exercise (if not registered, for resale
or otherwise, or if no exemption from registration exists) will bear
substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT 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,
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF 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.
Without limiting the Purchaser's right to transfer, assign or otherwise convey
the Warrant or Warrant Shares in compliance with all applicable securities laws,
the Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and the Warrant Shares to be issued upon exercise hereof are being acquired
solely for the Purchaser's own account and not as a nominee for any other party,
and that the Purchaser will not offer, sell or otherwise dispose of this Warrant
or any Warrant Shares to be issued upon exercise hereof except under
circumstances that will not result in a violation of applicable federal and
state securities laws.
8
18. Miscellaneous.
(a) Issue Date; Choice of Law; Venue; Jurisdiction. The provisions of this
Warrant shall be construed and shall be given effect in all respects as if it
had been issued and delivered by the Company on the date hereof. This Warrant
shall be binding upon any successors or assigns of the Company. This Warrant
will be construed and enforced in accordance with and governed by the laws of
the State of New York, except for matters arising under the Act, without
reference to principles of conflicts of law. Each of the parties consents to the
exclusive jurisdiction of the Federal and State Courts sitting in the County of
New York in the State of New York in connection with any dispute arising under
this Warrant and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens or venue, to
the bringing of any such proceeding in such jurisdiction. EACH PARTY HERETO
WAIVES THE RIGHT TO A TRIAL BY JURY.
(b) Modification and Waiver. This Warrant and any provisions hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought. Any
amendment effected in accordance with this paragraph shall be binding upon the
Purchaser, each future holder of this Warrant and the Company. No waivers of, or
exceptions to, any term, condition or provision of this Warrant, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
(c) Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing by facsimile, mail or personal delivery and shall
be effective upon actual receipt of such notice. The addresses for such
communications shall be to the addresses as shown on the books of the Company or
to the Company at the address set forth in the Purchase Agreement. A party may
from time to time change the address to which notices to it are to be delivered
or mailed hereunder by notice in accordance with the provisions of this Section
16(c).
(d) Severability. Whenever 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 is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this Warrant
in such jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Warrant shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(e) Specific Enforcement. The Company and the Holder acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the undersigned officer thereunto duly authorized.
Dated: July 11, 2005
ICURIE, INC.
By: _________________________________________
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
PURCHASE FORM
SUBSCRIPTION (CASH)
The undersigned, ________________________ (the "Holder"), pursuant to the
provisions of the Warrant of iCURIE, INC. ("the Company") granted to the Holder
(or its assignor) dated ____________________ (the "Warrant"), hereby agrees to
subscribe for and purchase ____________________ shares of the Common Stock, par
value $0.001 per share, of the Company covered by the Warrant, and makes payment
therefor in full at the price per share provided by the Warrant.
Dated: ____________________ Signature: ________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK:
Name______________________________________________________
(please type or print in block letters)
Address___________________________________________________
Address___________________________________________________
NOTICE OF CASHLESS EXERCISE
SUBSCRIPTION (CASHLESS EXERCISE)
To: iCURIE, INC.
THE UNDERSIGNED HOLDER _______________________, PURSUANT TO THE PROVISIONS OF
THE WARRANT, HEREBY ELECTS TO EXCHANGE ITS WARRANT, IN WHOLE OR IN PART, AS
APPROPRIATE, FOR ______ SHARES OF COMMON STOCK, PAR VALUE $0.001 PER SHARE, OF
THE COMPANY, PURSUANT TO THE CASHLESS EXERCISE PROVISIONS OF SECTION 3(e) 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 AS IS SPECIFIED
BELOW:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
PLEASE ISSUE A NEW WARRANT FOR THE UNEXERCISED PORTION OF THE ATTACHED WARRANT
IN THE NAME OF THE UNDERSIGNED OR IN SUCH OTHER NAME AS IS SPECIFIED BELOW:
_______________________________
(Name)
__________________________ _______________________________
(Date) (Signature)
_______________________________
(Address)
Dated:
_______________________________
Signature
FORM OF ASSIGNMENT OR PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _________________________ (the "Holder") hereby sells,
assigns and transfers unto
Name____________________________________________________________________________
(please typewrite or print in block letters)
Address_________________________________________________________________________
the right to purchase Common Stock, as appropriate, to the extent of _________
shares as to which such right is exercisable pursuant to this Warrant of iCURIE,
INC. ("the Company") dated _______________ granted to the Holder (or its
assignor), and does hereby irrevocably constitute and appoint
____________________________, attorney, to transfer same on the books of the
Company with full power of substitution in the premises.
Signature:___________________________________
Dated:_______________________________________
