Contract
Exhibit
4.3
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT
TO PURCHASE COMMON STOCK
OF
This
Warrant (the “Warrant”) is issued to Xxxxxx and Xxxxxxxx Xxxxx Family Trust
(“Holder”) by Azur Holdings, Inc., a Delaware corporation (the “Company”), as of
March 1, 2006 (the “Warrant Issue Date”) in exchange for warrants to purchase
600,000 shares of Azur International, Inc. which were issued as of November
3,
2005 as a finder’s fee regarding the loan from Omicron Master Trust dated
November 3, 2005.
1. Purchase
Shares.
Subject
to the terms and conditions hereinafter set forth, the Holder is entitled,
upon
surrender of this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the Holder hereof in writing), to
purchase from the Company Six Hundred Thousand (600,000) shares of $.0001 par
value per share Common Stock of the Company (the “Warrant Shares”) at the
Exercise Price (defined below), subject to adjustment as provided in Section
7
below.
2. Exercise
Price.
The
exercise price for the Warrant Shares shall be $.50 per Warrant Share, as
adjusted from time to time pursuant to Section 7 hereof (the “Exercise
Price”).
3. Exercise
Period.
This
Warrant shall be exercisable, in whole or in part, during the term commencing
on
the Warrant Issue Date and ending on November 3, 2010.
4. Method
of Exercise.
While
this Warrant remains outstanding and exercisable in accordance with Section
3
above, the Holder may exercise, in whole or in part, the purchase rights
evidenced hereby. Such exercise shall be effected by:
(a) the
surrender of the Warrant, together with a duly executed copy of the form of
Notice of Exercise attached hereto, to the Secretary of the Company at its
principal offices; and
(b) the
payment to the Company of an amount equal to the aggregate Exercise Price for
the number of Warrant Shares being purchased.
5. Certificates
for Shares.
Upon
the exercise of the purchase rights evidenced by this Warrant, one or more
certificates for the number of Warrant Shares so purchased shall be issued
as
soon as practicable thereafter (with appropriate restrictive legends, if
applicable), and in any event within thirty (30) days of the delivery of the
notice of exercise.
6. Issuance
of Shares.
The
Company covenants that the Warrant Shares, when issued pursuant to the exercise
of this Warrant, will be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens, and charges with respect to the issuance
thereof.
7. Adjustment
of Exercise Price and Kind and Number of Shares.
The
number and kind of securities purchasable upon exercise of this Warrant and
the
Exercise Price shall be subject to adjustment from time to time as
follows:
(a) Subdivisions,
Combinations and Other Issuances.
If the
Company shall at any time prior to the expiration of this Warrant (i) subdivide
its Common Stock, by split-up or otherwise, or combine its Common Stock, (ii)
issue additional shares of its Common Stock or other equity securities as a
dividend with respect to any shares of its Common Stock, or (iii) declare a
cash
dividend with respect to any shares of its Common Stock, the number of shares
of
Common Stock issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or stock or cash
dividend, or proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the purchase price payable per share, but
the
aggregate purchase price payable for the total number of Warrant Shares
purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 7(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as
of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) Reclassification,
Reorganization and Consolidation.
In case
of any reclassification, capital reorganization, or change in the Common Stock
of the Company (other than as a result of a subdivision, combination, or stock
dividend provided for in Section 7(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made,
and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at
any
time prior to the expiration of this Warrant to purchase, at a total price
equal
to that payable upon the exercise of this Warrant (subject to adjustment of
the
Exercise Price as provided in Section 7), the kind and amount of shares of
stock
and other securities and property receivable in connection with such
reclassification, reorganization, or change by a Holder of the same number
of
shares of Common Stock as were purchasable by the Holder immediately prior
to
such reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to
any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the purchase price per
share payable hereunder, provided the aggregate purchase price shall remain
the
same.
(c) Issuance
of New Warrant.
Upon
the occurrence of any of the events listed in this Section 7 that results in
an
adjustment of the type, number or exercise price of the securities underlying
this Warrant, the Holder shall have the right to receive a new warrant
reflecting such adjustment upon the Holder tendering this Warrant in exchange.
The new warrant shall otherwise have terms identical to this
Warrant.
(THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
8. Covenants
and Conditions.
(a)
No
Impairment.
Pursuant to the terms and conditions of this Warrant, Company shall: (i) reserve
an appropriate number of shares of Company’s Common Stock to facilitate the
issuance of Warrant Shares to Holder pursuant to this Warrant and (ii) not
amend
its articles or take any other action that would materially impair Company’s
ability to comply with the terms of the Warrant or otherwise unfairly impair
the
rights of the Holder.
9.
No
Fractional Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant, but in lieu of such fractional shares the Company
shall make a cash payment therefor on the basis of the Exercise Price then
in
effect.
10. No
Stockholder Rights.
Prior
to exercise of this Warrant, the Holder shall not be entitled to any rights
of a
stockholder with respect to the shares of Common Stock issuable on the exercise
hereof, including (without limitation) the right to vote such shares of Common
Stock, receive dividends or other distributions thereon, exercise preemptive
rights or be notified of stockholder meetings, and such Holder shall not be
entitled to any notice or other communication concerning the business or affairs
of the Company. However, nothing in this Section 10 shall limit the right of
the
Holder to be provided the Notices required under this Warrant.
11. Successors
and Assigns.
The
terms and provisions of this Warrant shall inure to the benefit of, and be
binding upon, the Company and the Holder and their respective successors and
assigns.
12. Amendments
and Waivers.
Any
term of this Warrant may be amended and the observance of any term of this
Warrant may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
the
Holder. Any waiver or amendment affected in accordance with this Section shall
be binding upon each holder of any shares of Preferred Stock purchased under
this Warrant at the time outstanding (including securities into which such
shares have been converted), each future holder of all such shares, and the
Company.
13. Notices.
All
notices required under this Warrant shall be deemed to have been given or made
for all purposes (i) upon personal delivery, (ii) upon confirmation receipt
that
the communication was successfully sent to the applicable number if sent by
facsimile; (iii) one day after being sent, when sent by professional overnight
courier service, or (iv) five days after posting when sent by registered or
certified mail. Notices to the Company shall be sent to the principal office
of
the Company (or at such other place as the Company shall notify the Holder
hereof in writing). Notices to the Holder shall be sent to the address of the
Holder on the books of the Company (or at such other place as the Holder shall
notify the Company hereof in writing).
14. Captions.
The
section and subsection headings of this Warrant are inserted for convenience
only and shall not constitute a part of this Warrant in construing or
interpreting any provision hereof.
15. Governing
Law.
This
Warrant shall be governed by the laws of the State of New York as applied to
agreements among California residents made and to be performed entirely within
the State of New York.
IN
WITNESS WHEREOF, Azur Holdings, Inc. caused this Warrant to be executed by
an
officer thereunto duly authorized.
By:
/s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx
Xxxxxxx
Title:
President
NOTICE
OF EXERCISE
To:_________________
The
undersigned hereby elects to purchase _________________ shares of Common Stock
of Azur Holdings, Inc., pursuant to the terms of the attached Warrant and
payment of the Exercise Price per share required under such Warrant accompanies
this notice.
The
undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
WARRANT
HOLDER:
_________________________________________
By:__________________________
[NAME]
Address:____________________________
___________________________________
___________________________________
Date:____________________
Name
in
which shares should be
issued:____________________________________
