NOVINT TECHNOLOGIES, INC. FORM OF COMMON STOCK PURCHASE WARRANT
NOVINT
TECHNOLOGIES, INC.
FORM
OF
| Warrant No. ________ |
_________
Warrants
|
VOID
AFTER 5:00 P.M. LOS ANGELES TIME
ON
___________, 2013
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND
HAVE NOT BEEN REGISTERED 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 COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS.
Novint
Technologies, Inc. (the “Company”),
having its principal office as of the date hereof at 0000 Xxxxxxxx Xxxx XX,
Xxxxxxxxxxx, Xxx Xxxxxx, 00000 hereby certifies that, for value received,
_____________, or its registered assigns, is entitled, subject to the terms
and
conditions set forth below, to purchase from the Company at any time on or
from
time to time after ___________, 2008 (date that is the Original Issue Date),
and
before 5:00 P.M., Los Angeles time, on ______________, 2013 (date that is
the
fifth anniversary of the Original Issue Date) (the “Expiration
Date”),
__________ fully paid and non-assessable shares of Common Stock (as defined
below), at the initial Purchase Price per share (as defined below) of $1.00.
The
number of such shares of Common Stock and the Purchase Price per share are
subject to adjustment as provided in Section 5.
The
Company agreed to issue Warrants, including this Warrant, to purchase up
to a
maximum of _________ shares of Common Stock (subject to adjustment as
provided in Section 5) in connection with the Company's private placement
of up
to a maximum aggregate of __________ unsecured convertible notes (“Notes”)
and
Warrants.
1. Definitions.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
“Aggregate
Purchase Price”
has
the
meaning set forth in Section 3.1.
“Blue
Sky Laws”
means
any state securities or “blue sky” laws.
“Board
of Directors”
means
the board of directors of the Company.
“Business
Day”
means
any day other than Saturday, Sunday or any other day on which commercial
banks
in The City of New York are authorized or required by law to remain
closed.
“Buy-In”
has
the
meaning set forth in Section 4.
“Company”
includes the Company and any corporation which shall succeed to or assume
the
obligations of the Company hereunder. The term "corporation" shall include
an
association, joint stock company, business trust, limited liability company
or
other similar organization.
“Common
Stock”
means
the Company’s Common Stock, $.01 par value per share, authorized as of the date
hereof, and any stock of any class or classes (however designated) hereafter
authorized upon reclassification thereof, which, if the Board of Directors
declares any dividends or distributions, has the right to participate in
the
distribution of earnings and assets of the Company after the payment of
dividends or other distributions on any shares of capital stock of the Company
entitled to a preference and in the voting for the election of directors
of the
Company.
“Convertible
Securities”
means
(i) options to purchase or rights to subscribe for Common Stock, (ii) securities
by their terms convertible into or exchangeable for Common Stock or (iii)
options to purchase or rights to subscribe for such convertible or exchangeable
securities.
“Delivery
Date”
has
the
meaning set forth in Section 4.
“Exchange
Act”
means
the Securities Exchange Act of 1934 as the same shall be in effect at the
time.
“Holder”
means
any record owner of Warrants or Underlying Securities.
“Market
Price”
means,
for one share of Common Stock at any date (i) if the principal trading market
for the Common Stock is an exchange, the average of the closing sale prices
per
share for the last twenty (20) previous trading days in which a sale was
reported, as officially reported on any consolidated tape, (ii) if the principal
market for such securities is the over-the-counter market, the average of
the
closing sale prices per share on the last twenty (20) previous trading days
in
which a sale was reported as set forth by Nasdaq or, (iii) if the security
is
not listed on an exchange or Nasdaq, the average of the closing sale prices
per
share on the last twenty (20) previous trading days in which a sale was reported
as set forth in the National Quotation Bureau sheet listing such securities
for
such days. Notwithstanding the foregoing, if there is no reported closing
sale
price, as the case may be, reported on any of the twenty (20) trading days
preceding the event requiring a determination of Market Price hereunder,
then
the Market Price shall be the average of the high bid and asked prices for
the
last ten previous trading days in which a sale was reported; and if there
is no
reported high bid and asked prices, as the case may be, reported on any of
the
ten trading days preceding the event requiring a determination of Market
Price
hereunder, then the Market Price shall be determined in good faith by resolution
of the Board of Directors. The Market Price of Other Securities, if any,
shall
be determined in the same manner as Common Stock.
“Nasdaq”
means
the Nasdaq Global Market or Nasdaq Capital Market.
“Notice”
has
the
meaning set forth in Section 21.
“Original
Issue Date”
means
___________, 2008.
“OTC”
means
the OTC Bulletin Board.
“Other
Securities”
refers
to any stock (other than Common Stock) and other securities of the Company
or
any other Person (corporate or otherwise) which the Holders of the Warrants
at
any time shall be entitled to receive, or shall have received, upon the exercise
of the Warrants, in lieu of or in addition to Common Stock, or which at any
time
shall be issuable or shall have been issued in exchange for or in replacement
of
Common Stock or Other Securities pursuant to Section 5 or 6.
“Person”
means
any individual, sole proprietorship, partnership, corporation, limited liability
company, business trust, unincorporated association, joint stock corporation,
trust, joint venture or other entity, any university or similar institution,
or
any government or any agency or instrumentality or political subdivision
thereof.
“Purchase
Price per share”
means
$1.00 per share, as may be adjusted from time to time in accordance with
Section
5 or 6.
“Registered”
and
“Registration”
refer
to a registration effected by filing a registration statement in compliance
with
the Securities Act, to permit the disposition of Underlying Securities issued
or
issuable upon the exercise of Warrants, and any post-effective amendments
and
supplements filed or required to be filed to permit any such
disposition.
“Securities
Act”
means
the Securities Act of 1933 as the same shall be in effect at the
time.
“Subscriber”
has
the
meaning set forth in the Subscription Agreement.
“Underlying
Securities”
means
any Common Stock or Other Securities issued or issuable upon exercise of
Warrants.
“Subscription
Agreement”
means
the Subscription Agreement, dated as of ______________, 2008, among the Company
and the Subscribers.
“Warrant”
means,
as applicable, (i) the Warrants dated as of the date hereof, originally issued
by the Company pursuant to the Subscription Agreement, of which this Warrant
is
one, evidencing rights to purchase up to a maximum of _________ shares of
Common
Stock, and all Warrants issued upon transfer, division or combination of,
or in
substitution for, any thereof (all Warrants shall at all times be identical
as
to terms and conditions and date, except as to the number of shares of Common
Stock for which they may be exercised) or (ii) each right as set forth in
this
Warrant to purchase one share of Common Stock, as adjusted from time to time
in
accordance with Section 5 or 6.
2. Sale
or Exercise Without Registration.
If, at
the time of any exercise, transfer or surrender for exchange of a Warrant
or of
Underlying Securities previously issued upon the exercise of Warrants, such
Warrant or Underlying Securities shall not be registered under the Securities
Act, the Company may require, as a condition of allowing such exercise, transfer
or exchange, that the Holder or transferee of such Warrant or Underlying
Securities, as the case may be, furnish to the Company an opinion of counsel,
reasonably satisfactory to the Company, to the effect that such exercise,
transfer or exchange may be made without registration under the Securities
Act
and without registration or qualification under any applicable Blue Sky Laws;
provided that nothing contained in this Section 2 shall relieve the Holder
from
its obligations under the Subscription Agreement.
3. Exercise
of Warrant.
3.1. Exercise
in Full.
Subject
to the provisions hereof, this Warrant may be exercised in full by the Holder
hereof by surrender of this Warrant, with the form of subscription at the
end
hereof duly executed by such Holder, to the Company at its principal office
as
set forth at the head of this Warrant (or such other location as the Company
from time to time may advise the Holder in writing), accompanied by payment,
in
cash or by certified or official bank check payable to the order of the Company,
in the amount obtained (the “Aggregate
Purchase Price”)
by
multiplying (a) the number of shares of Common Stock then issuable upon exercise
of this Warrant by (b) the Purchase Price per share on the date of such
exercise.
3.2. Partial
Exercise.
Subject
to the provisions hereof, this Warrant may be exercised in part by surrender
of
this Warrant in the manner and at the place provided in Section 3.1 except
that
the amount payable by the Holder upon any partial exercise shall be the amount
obtained by multiplying (a) the number of shares of Common Stock designated
by
the Holder in the subscription at the end hereof by (b) the Purchase Price
per
share on the date of such exercise. Upon any such partial exercise, the Company
at its expense shall forthwith issue and deliver to or upon the order of
the
Holder hereof a new Warrant or Warrants of like tenor, in the name of the
Holder
hereof or as such Holder (upon payment by such Holder of any applicable transfer
taxes and subject to the provisions of Section 2) may request, calling in
the
aggregate on the face or faces thereof for the number of shares of Common
Stock
equal to the number of such shares issuable prior to such partial exercise
of
this Warrant minus the number of such shares designated by the Holder in
the
subscription at the end hereof.
3.3. Company
to Reaffirm Obligations.
The
Company shall, at the time of any exercise of this Warrant, upon the request
of
the Holder hereof, acknowledge in writing its continuing obligation to afford
to
such Holder any rights to which such Holder shall continue to be entitled
after
such exercise in accordance with the provisions of this Warrant; provided,
however, that if the Holder of this Warrant shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to
afford
such Holder any such rights.
3.4. Certain
Exercises.
If an
exercise of this Warrant is to be made in connection with a registered public
offering or sale of the Company, such exercise may, at the election of the
Holder, be conditioned on the consummation of the public offering or sale
of the
Company, in which case such exercise shall not be deemed effective until
the
consummation of such transaction.
3.5. Limited
Net Issue Exercise.
At any
time or from time to time, to the extent there is no effective registration
statement registering the resale of the Underlying Securities by the Holder,
this Warrant may also be exercised at such time by means of a “Net
Issue Exercise”
in
which the Holder shall be entitled to receive Underlying Securities equal
to the
value of this Warrant (or the portion thereof being exercised by Net Issue
Exercise) by surrender of this Warrant to the Company together with notice
of
such Net Issue Exercise, in which event the Company shall issue to Holder
a
number of Underlying Securities computed as of the date of surrender of this
Warrant to the Company using the following formula:
X
=
Y
x
(A-B)
A
Where:
|
X
=
|
the
number of Underlying Securities to be issued to Holder pursuant
to this
Section 3.5;
|
|
Y
=
|
the
number of Underlying Securities otherwise purchasable under this
Warrant,
or any lesser number of Underlying Securities as to which this
Warrant is
being exercised (at the date of such
calculation);
|
|
A
=
|
the
Market Price of one share of Common Stock (at the date of such
calculation);
|
|
B
=
|
the
Purchase Price per share (as adjusted to the date of such
calculation).
|
4. Delivery
of Stock Certificates, etc., on Exercise; Buy-In.
4.1. Delivery
of Certificates.
As soon
as practicable after the exercise of this Warrant in full or in part, and
in any
event within ten Business Days thereafter (the “Delivery
Day”),
the
Company at its own expense (including the payment by it of any applicable
issue
taxes) shall cause to be issued in the name of and delivered to the Holder
hereof, or as such Holder (upon payment by such Holder of any applicable
transfer taxes and subject to the provisions of Section 2) may direct, a
certificate or certificates for the number of fully paid and non-assessable
shares of Common Stock or Other Securities to which such Holder shall be
entitled upon such exercise, plus, in lieu of any fractional share to which
such
Holder would otherwise be entitled, cash equal to such fraction multiplied
by
the then current Market Price of one full share.
4.2. Issuance
of Certificates.
If the
Company fails to deliver to the Holder a certificate or certificates
representing the Underlying Securities by the third (3rd) trading day following
the Delivery Date (or such longer or shorter time as is then required by
the SEC
regulations on the settlement of trades), then the Holder will have the right
to
rescind such exercise. In addition to any other rights available to the Holder,
if the Company fails to deliver to the Holder a certificate or certificates
representing the Underlying Securities pursuant to an exercise by the fifth
(5th) trading day after the Delivery Date, and if after such day the Holder
is
required by its broker to purchase (in an open market transaction or otherwise)
securities to deliver in satisfaction of a sale by the Holder of the Underlying
Securities which the Holder anticipated receiving upon such exercise (a
“Buy-In”),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Underlying Securities that the Company was
required to deliver to the Holder in connection with the exercise at issue
times
(B) the price at which the sell order giving rise to such purchase obligation
was executed, and (2) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of Underlying Securities for which such
exercise was not honored or deliver to the Holder the number of Underlying
Securities that would have been issued had the Company timely complied with
its
exercise and delivery obligations hereunder. For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to cover
a
Buy-In with respect to an attempted exercise of shares of Common Stock with
an
aggregate sale price giving rise to such purchase obligation of $10,000,
under
clause (1) of the immediately preceding sentence the Company shall be required
to pay the Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In, together
with applicable confirmations and other evidence reasonably requested by
the
Company. Nothing herein shall limit a Xxxxxx's right to pursue any other
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance or injunctive relief with respect
to the Company's failure to timely deliver certificates representing Underlying
Securities upon exercise of the Warrant as required pursuant to the terms
hereof.
5. Adjustment
for Stock Splits; Dividends.
The
number and kind of securities purchasable upon the exercise of this Warrant
and
the Purchase Price shall be subject to adjustment from time to time upon
the
happening of any of the following. In case the Company shall (i) pay a dividend
in shares of Common Stock or make a distribution in shares of Common Stock
to
holders of its outstanding Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock, or
(iv)
issue any shares of its capital stock in a reclassification of the Common
Stock,
then the number of Underlying Securities purchasable upon exercise of this
Warrant immediately prior thereto shall be adjusted so that the Holder shall
be
entitled to receive the kind and number of Underlying Securities or other
securities of the Company which it would have owned or have been entitled
to
receive had such Warrant been exercised in advance thereof Upon each such
adjustment of the kind and number of Underlying Securities or other securities
of the Company which are purchasable hereunder, the Holder shall thereafter
be
entitled to purchase the number of Underlying Securities or other securities
resulting from such adjustment at a Purchase Price per share or other security
obtained by multiplying the Purchase Price per share in effect immediately
prior
to such adjustment by the number of Underlying Securities purchasable pursuant
hereto immediately prior to such adjustment and dividing by the number of
Underlying Securities or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event. The Company shall not declare or pay a dividend
in
cash or other assets prior to the Expiration Date unless the aggregate amount
of
any such dividends is less than fifty (50%) percent of the Company’s net
operating income for the previous fiscal year.
6. Reorganization,
Consolidation, Merger, etc.
In case
the Company shall reorganize its capital, reclassify its capital stock,
consolidate or merge with or into another corporation (where the Company
is not
the surviving corporation or where there is a change in or distribution with
respect to the Common Stock of the Company), or sell, transfer or otherwise
dispose of its property, assets or business to another corporation and, pursuant
to the terms of such reorganization, reclassification, merger, consolidation
or
disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property
of any
nature whatsoever (including warrants or other subscription or purchase rights)
in addition to or in lieu of common stock of the successor or acquiring
corporation (“Other
Property”),
are
to be received by or distributed to the holders of Common Stock of the Company,
then the Holder shall have the right thereafter to receive, at the option
of the
Holder, (a) upon exercise of this Warrant, the number of shares of common
stock
of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and Other Property 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 this Warrant
is
exercisable immediately prior to such event or (b) cash equal to the value
of
this Warrant as determined in accordance with the Black Scholes option pricing
formula. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant to be performed and observed by the Company and all the obligations
and
liabilities hereunder, subject to such modifications as may be deemed
appropriate (as determined in good faith by resolution of the Board of Directors
of the Company) in order to provide for adjustments of Underlying Securities
for
which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 6. For purposes
of
this Section 6, “common stock of the successor or acquiring corporation” shall
include stock of such corporation of any class which is not preferred as
to
dividends or assets over any other class of stock of such corporation and
which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into
or
exchangeable for any such stock, either immediately or upon the arrival of
a
specified date or the happening of a specified event and any warrants or
other
rights to subscribe for or purchase any such stock. The foregoing provisions
of
this Section 6 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of
assets.
7. Further
Assurances; Reports.
The
Company shall take all such action as may be necessary or appropriate in
order
that the Company may validly and legally issue fully paid and non-assessable
shares of Underlying Securities upon the exercise of all Warrants from time
to
time outstanding. For so long as the Holder holds this Warrant, the Company
shall deliver to the Holder contemporaneously with delivery to the holders
of
Common Stock, a copy of each report of the Company delivered to such
holders.
8. Certificate
as to Adjustments.
In each
case of any adjustment or readjustment in the Underlying Securities, the
Company
shall, at its expense, promptly cause its Chief Financial Officer to compute
such adjustment or readjustment in accordance with the terms of this Warrant
and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based,
and the
number of shares of Common Stock or Other Securities outstanding or deemed
to be
outstanding. The Company shall forthwith mail a copy of each such certificate
to
the Holder.
9. Notices
of Record Date, etc.
In the
event of
(a) any
taking by the Company of a record of its stockholders for the purpose of
determining the stockholders thereof who are entitled to receive any dividend
or
other distribution, or any right to subscribe for, purchase or otherwise
acquire
any shares of stock of any class or any other securities or property, or
to
receive any other right, or for the purpose of determining stockholders who
are
entitled to vote in connection with any proposed capital reorganization of
the
Company, any reclassification or recapitalization of the capital stock of
the
Company or any transfer of all or substantially all the assets of the Company
to
or consolidation or merger of the Company with or into any other Person,
or
(b) any
voluntary or involuntary dissolution, liquidation or winding-up of the
Company,
then
and
in each such event the Company shall mail or cause to be mailed to each Holder
of a Warrant a notice specifying (i) the date on which any such record is
to be
taken for the purpose of such dividend, distribution or right, and stating
the
amount and character of such dividend, distribution or right and (ii) the
date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take
place,
and the time, if any, as of which the Holders of record of Underlying Securities
shall be entitled to exchange their shares of Underlying Securities for
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
20
days prior to the date therein specified.
10. Reservation
of Stock, etc., Issuable on Exercise of Warrants.
The
Company shall at all times reserve and keep available, solely for issuance
and
delivery upon the exercise of the Warrants, all shares of Common Stock (or
Other
Securities) from time to time issuable upon the exercise of the
Warrants.
11. Listing
on Securities Exchanges; Registration; Issuance of Certain
Securities.
In
furtherance and not in limitation of any other provision of this Warrant,
if the
Company at any time shall list any Common Stock (or Other Securities) on
any
national securities exchange or Nasdaq, the Company shall, at its expense,
simultaneously list the Underlying Securities from time to time issuable
upon
the exercise of the Warrants on such exchange or Nasdaq, upon official notice
of
issuance.
12. Exchange
of Warrants.
Subject
to the provisions of Section 2, upon surrender for exchange of this Warrant,
properly endorsed, to the Company, as soon as practicable (and in any event
within three Business Days) the Company at its own expense shall issue and
deliver to or upon the order of the Holder thereof a new Warrant or Warrants
of
like tenor, in the name of such Holder or as such Holder (upon payment by
such
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on
the face or faces thereof for the number of shares of Common Stock called
for on
the face of this Warrant so surrendered.
13. Replacement
of Warrants.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company
at its
expense shall execute and deliver, in lieu thereof, a new Warrant of like
tenor.
14. Warrant
Agent.
The
Company may, by written notice to each Holder of a Warrant, appoint an agent
having an office in New York, New York, for the purpose of issuing Common
Stock
(or Other Securities) upon the exercise of the Warrants pursuant to Section
3,
exchanging Warrants pursuant to Section 12, and replacing Warrants pursuant
to
Section 13, or any of the foregoing, and thereafter any such issuance, exchange
or replacement, as the case may be, shall be made at such office by such
agent.
15. Remedies.
The
Company stipulates that the remedies at law of the Holder of this Warrant
in the
event of any default or threatened default by the Company in the performance
of
or compliance with any of the terms of this Warrant may not be adequate,
and
that such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction that may
be
sought against a violation of any of the terms hereof or otherwise.
16. No
Rights as Stockholder.
This
Warrant does not entitle the Holder hereof to any voting rights or other
rights
as a stockholder of the Company prior to the exercise hereof.
17. Negotiability,
etc.
Subject
to Section 2, this Warrant is issued upon the following terms, to all of
which
each Holder or owner hereof by the taking hereof consents and agrees
that:
(a) subject
to the provisions of this Warrant and the Subscription Agreement, title to
this
Warrant may be transferred by endorsement (by the Holder hereof executing
the
form of assignment at the end hereof); and
(b) until
this Warrant is transferred on the books of the Company, the Company may
treat
the registered Holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
18. Entire
Agreement; Successors and Assigns.
This
Warrant and the Subscription Agreement constitute the entire contract between
the parties relative to the subject matter hereof. This Warrant and the
Subscription Agreement supersede any previous agreement among the parties
with
respect to the subject matter hereof. The terms and conditions of this Warrant
shall inure to the benefit of and be binding upon the respective permitted
executors, administrators, heirs, successors and assigns of the parties.
Nothing
in this Warrant, expressed or implied, is intended to confer upon any party,
other than the Holder and the Company, any rights, remedies, obligations
or
liabilities under or by reason of this Warrant.
19. Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of
the
State of New Mexico without regard to principles of conflicts of law.
20. Headings.
The
headings of the sections of this Warrant are for convenience and shall not
by
themselves determine the interpretation of this Warrant.
21. Notices.
Any
notice or other communication required or permitted to be given hereunder
(each
a “Notice”)
shall
be given in writing and shall be made by personal delivery or sent by courier
or
certified or registered first-class mail (postage pre-paid), addressed to
a
party at its address shown below or at such other address as such party may
designate by three days’ advance Notice to the other party.
Any
Notice to the Holder shall be sent to the address for such Xxxxxx set forth
on
books and records of the Company.
Any
Notice to the Company shall be sent to:
Novint
Technologies, Inc.
0000
Xxxxxxxx Xxxx XX
Albuquerque,
New Mexico 87114
Attention:
CEO
Each
Notice shall be deemed given and effective upon receipt (or refusal of
receipt).
22. Severability.
Whenever possible, each provision of this Warrant shall be interpreted in
such a
manner as to be effective and valid under applicable law, but if any provision
of this Warrant shall be deemed prohibited or invalid under such applicable
law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, and such prohibition or invalidity shall not invalidate the
remainder of such provision or any other provision of this Warrant.
23. Amendments
and Waivers.
Any
provision of this Warrant may be amended and the observance of any provision
of
this Warrant may be waived (either generally or in a particular instance
and
either retroactively or prospectively), only with the written consent of
the
Company and the Holders of a majority of the Warrants then outstanding. Any
amendment or waiver effected in accordance with this Section 23 shall be
binding
upon each Holder of a Warrant.
24. Construction.
Words
(including capitalized terms defined herein) in the singular shall be held
to
include the plural and vice versa as the context requires. The words
“herein”,
“hereinafter”,
“hereunder”
and
words of similar import used in this Warrant shall, unless otherwise stated,
refer to this Warrant as a whole and not to any particular provision of this
Warrant. All references to “$” in this Warrant and the other agreements
contemplated hereby shall refer to United States dollars (unless otherwise
specified expressly). Any reference to any gender includes the other
genders.
25. Assignability.
Subject
to Section 2, this Warrant is fully assignable at any time.
Dated:
____________, 2008
NOVINT
TECHNOLOGIES, INC.
By:________________________________
Name:
Title:
Attest:___________________________
FORM
OF
SUBSCRIPTION
(To
be
signed only upon exercise of Warrant)
To:
NOVINT TECHNOLOGIES, INC.
The
undersigned, the Holder of the within Warrant, hereby irrevocably elects
to
exercise the purchase right represented by such Warrant for, and to purchase
thereunder, * shares of Common Stock of Novint Technologies, Inc., and herewith
makes payment of $__________ or, subject to satisfaction of the conditions
set
forth in Section 3.5 of the Warrant,
[by initial here _____] Holder elects to exercise under the Net Issue Exercise
provisions of Section 3.5 of the Warrant, and requests that the certificates
for
such shares be issued in the name of, and delivered to, ___________________,
whose address is _______________________.
The
undersigned represents that the undersigned is acquiring such securities
for its
own account for investment and not with a view to or for sale in connection
with
any distribution thereof (except for any resale pursuant to, and in accordance
with a valid registration statement effective under the Securities Act of
1933).
Dated:
________________________________________
(Signature
must conform in all respects to the name of the Holder as specified on the
face
of the Warrant)
________________________________________
(Address)
*
Insert
here the number of shares called for on the face of the Warrant (or, in the
case
of a partial exercise, the portion thereof as to which the Warrant is being
exercised).
FORM
OF
ASSIGNMENT
(To
be
signed by the Holder only upon transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns and transfers unto
_________________________ the right represented by the within Warrant to
purchase _________ shares of Common Stock of Novint Technologies, Inc. to
which
the within Warrant relates, and hereby does irrevocably constitute and appoint
______________________________ Attorney to transfer such right on the books
of
Novint Technologies, Inc. with full power of substitution in the premises.
The
Warrant being transferred hereby is one of the Warrants issued by Novint
Technologies, Inc. as of _________, 2008 to purchase up to a maximum of
_________ shares of Common Stock.
Dated:_______________
__________________________________________
(Signature
must conform in all respects to name of Xxxxxx as specified on the face of
the
Warrant)
__________________________________________
(Address)
_______________________________
Medallion
signature guaranteed by a bank
or
trust
company having its
principal
office in New York City
or
by a
Member Firm of the New
York
Stock Exchange
or
American Stock Exchange
