Contract
NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE HEREUNDER HAVE BEEN REGISTERED WITH
THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH
A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(A)
UNDER THE SECURITIES ACT.
eMagin
Corporation
Warrant
Warrant
No.
____
Original
Issue Date: October 20, 2005
eMagin
Corporation,
a
Delaware corporation (the “Company”),
hereby certifies that, for value received, [__________] or its registered
assigns (the “Holder”),
is
entitled to purchase from the Company up to a total of [________]1
shares
of Common Stock (each such share, a “Warrant
Share”
and all
such shares, the “Warrant
Shares”),
at
any time and from time to time from and after May 20, 2006 and through
and
including October 20, 2010 (the “Expiration
Date”),
and
subject to the following terms and conditions:
1. Definitions.
As used
in this Warrant, the following terms shall have the respective definitions
set
forth in this Section
1.
Capitalized terms that are used but not defined in this Warrant that are
defined
in the Securities Purchase Agreement (as defined below) shall have the
respective definitions set forth in the Securities Purchase
Agreement.
“Business
Day”
means
any day except Saturday, Sunday and any day that is a federal legal holiday
in
the United States or a day on which banking institutions in the State of
New
York are authorized or required by law or other government action to
close.
1
A number
of shares as equals 60% of the Shares issuable to such investor on the
Closing
Date under the Securities Purchase Agreement.
1
“Common
Stock”
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
“Exercise
Price”
means $
1.00, subject to adjustment in accordance with Section
9.
“Fundamental
Transaction”
means
any of the following: (1) the Company effects any merger or consolidation
of the
Company with or into another Person, (2) the Company effects any sale of
all or
substantially all of its assets in one or a series of related transactions,
(3)
any tender offer or exchange offer (whether by the Company or another Person)
is
completed pursuant to which holders of Common Stock are permitted to tender
or
exchange their shares for other securities, cash or property, or (4) the
Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into
or
exchanged for other securities, cash or property.
“Original
Issue Date”
means
the Original Issue Date first set forth on the first page of this
Warrant.
“New
York Courts”
means
the state and federal courts sitting in the City of New York, Borough of
Manhattan.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Securities
Purchase Agreement”
means
the Securities Purchase Agreement, dated October 20, 2005, to which
the
Company and the original holder of the Warrant are parties.
“Trading
Day”
means
(i) a day on which the Common Stock is traded on a Trading Market, or (ii)
if
the Common Stock is not quoted or listed on any Trading Market, a day on
which
the Common Stock is quoted in the over-the-counter market; provided, that
in the
event that the Common Stock is not listed or quoted as set forth in (i) and
(ii)
hereof, then Trading Day shall mean a Business Day.
“Trading
Market”
means
the national stock exchange, the Nasdaq National Market, the Nasdaq SmallCap
Market or the OTC Bulletin Board on which the Common Stock is listed or quoted
for trading on the date in question.
2. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the
Company
for that purpose (the “Warrant
Register”),
in
the name of the record Holder hereof from time to time. The Company may deem
and
treat the registered Holder of this Warrant as the absolute owner hereof
for the
purpose of any exercise hereof or any distribution to the Holder, and for
all
other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Company at its address
specified herein. Upon any such registration or transfer, a new Warrant to
purchase Common Stock, in substantially the form of this Warrant (any such
new
Warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to
the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant. The rights of the original Holder under the Registration Rights
Agreement shall be transferred with such transfer of Warrant.
2
4. Exercise
and Duration of Warrants.
This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time as to two-thirds of the number of shares for which this Warrant is
exercisable on or after May 20, 2006 through and including the Expiration
Date;
and, as to the remaining one-third of the number of shares for which this
Warrant is exercisable, at any time after March 31, 2007 through and including
the Expiration Date, provided, however, that (i) if the Company’s Form 10-K or
10-KSB Annual Report for the fiscal year ended December 31, 2006 shows that
the
Company had Total Revenue, Net (as such line item is listed in such Annual
Report) of more than $20,000,000 for the fiscal year ended December 31, 2006,
or
(ii) if the Holder has sold more than 25% of the Shares (expressly not including
Warrant Shares) purchased pursuant to the Securities Purchase Agreement prior
to
December 31, 2006, then the remaining one-third of such Warrant shall not
be
exercisable and shall be deemed cancelled. At 6:30 p.m., New York City time
on
the Expiration Date, the portion of this Warrant not exercised prior thereto
shall be and become void and of no value. The Company may not call or redeem
any
portion of this Warrant without the prior written consent of the
Holder.
5. Delivery
of Warrant Shares.
(a) To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant
is
being exercised. Upon delivery of the Exercise Notice (in the form attached
hereto) to the Company (with the attached Warrant Shares Exercise Log) at
its
address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase
hereunder, the Company shall promptly (but in no event later than three Trading
Days after the Date of Exercise (as defined herein)) issue and deliver to
the
Holder, a certificate for the Warrant Shares issuable upon such exercise.
A
“Date
of Exercise”
means
the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Shares Exercise Log attached to it),
appropriately completed and duly signed and (ii) if such Holder is not utilizing
the cashless exercise provisions set forth in this Warrant, payment of the
Exercise Price for the number of Warrant Shares so indicated by the Holder
to be
purchased.
(b) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to
Section
5a,
then
the Holder will have the right to rescind such exercise.
3
(c) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to
Section
5a,
and if
after such third Trading Day and prior to the receipt of such Warrant Shares,
the Holder purchases (in an open market transaction or otherwise) shares
of
Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”),
then
the Company shall (i) pay in cash to the Holder the amount by which (A) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (B) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue by (2) the
closing bid price of the Common Stock on the Date of Exercise and (ii) at
the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or deliver
to
the Holder the number of shares of Common Stock that would have been issued
had
the Company timely complied with its exercise and delivery obligations
hereunder. The Holder shall provide the Company written notice indicating
the
amounts payable to the Holder in respect of the Buy-In.
(d) The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person
or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. 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 and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing Warrant Shares upon exercise of
the
Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of Warrant Shares upon exercise of this Warrant shall
be
made without charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in respect of
the
issuance of such certificates, all of which taxes and expenses shall be paid
by
the Company; provided, however, that the Company shall not be required to
pay
any tax which may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or Warrants in a name
other
than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant
or
receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue
or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which shall
not
include a surety bond), if requested. Applicants for a New Warrant under
such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company
may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
4
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares
which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of Persons
other
than the Holder (taking into account the adjustments and restrictions of
Section
0).
The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid
and
nonassessable.
9. Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this
Section
9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then, in each such case, the Exercise Price shall be adjusted by multiplying
the
Exercise Price in effect immediately prior to such event by a fraction of
which
the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event and the
product so obtained shall thereafter be the Exercise Price then in effect.
Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to
clause
(ii) or (iii) of this paragraph shall become effective immediately after
the
effective date of such subdivision or combination.
(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding there is a Fundamental Transaction,
then the Holder shall have the right thereafter to receive, upon exercise
of
this Warrant, the same amount and kind of securities, cash or property as
it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in
full
of this Warrant (the “Alternate
Consideration”).
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on
the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction,
then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. In the event of a Fundamental Change, the Company or the successor
or purchasing Person, as the case may be, shall execute with the Holder a
written agreement providing that:
5
(x)
this
Warrant shall thereafter entitle the Holder to purchase the Alternate
Consideration in accordance with this section 9(b),
(y) in
the
case of any such successor or purchasing Person, upon such consolidation,
merger, statutory exchange, combination, sale or conveyance such successor
or
purchasing Person shall be jointly and severally liable with the Company
for the
performance of all of the Company's obligations under this Warrant, the
Securities Purchase Agreement and the Registration Rights Agreement, and
(z) if
registration or qualification is required under the Exchange Act or applicable
state law for the public resale by the Holder of shares of stock and other
securities so issuable upon exercise of this Warrant, such registration or
qualification shall be completed prior to such reclassification, change,
consolidation, merger, statutory exchange, combination or sale.
If,
in
the case of any Fundamental Change, the Alternate Consideration includes
shares
of stock, other securities, other property or assets of a Person other than
the
Company or any such successor or purchasing Person, as the case may be, in
such
Fundamental Change, then such written agreement shall also be executed by
such
other Person and shall contain such additional provisions to protect the
interests of the Holder as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing. At the Holder’s option
and request, any successor to the Company or surviving entity in such
Fundamental Transaction shall, either (i) issue to the Holder a new warrant
substantially in the form of this Warrant and consistent with the foregoing
provisions and evidencing the Holder’s right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof, or
(ii)
purchase the Warrant from the Holder for a purchase price, payable in cash
within five Trading Days after such request (or, if later, on the effective
date
of the Fundamental Transaction), equal to the Black Scholes value of the
remaining unexercised portion of this Warrant on the date of such request.
The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this paragraph (b)
and
insuring that the Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
(c) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to this
Section
9,
the
number of Warrant Shares that may be purchased upon exercise of this Warrant
shall be increased or decreased proportionately, so that after such adjustment
the aggregate Exercise Price payable hereunder for the adjusted number of
Warrant Shares shall be the same as the aggregate Exercise Price in effect
immediately prior to such adjustment.
6
(d) Calculations.
All
calculations under this Section
0
shall be
made to the nearest cent or the nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at
any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(e) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section
9,
the
Company at its expense will promptly compute such adjustment in accordance
with
the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise
of
this Warrant (as applicable), describing the transactions giving rise to
such
adjustments and showing in detail the facts upon which such adjustment is
based.
Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s Transfer Agent.
(f) Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company or any subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver
to the
Holder a notice describing the material terms and conditions of such transaction
(but only to the extent such disclosure would not result in the dissemination
of
material, non-public information to the Holder) at least 10 calendar days
prior
to the applicable record or effective date on which a Person would need to
hold
Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in
order
to insure that the Holder is given the practical opportunity to exercise
this
Warrant prior to such time so as to participate in or vote with respect to
such
transaction; provided, however, that the failure to deliver such notice or
any
defect therein shall not affect the validity of the corporate action required
to
be described in such notice.
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in one of the following manners:
(a) Cash
Exercise.
The
Holder may deliver immediately available funds; or
(b) Cashless
Exercise.
If an
Exercise Notice is delivered at a time when (i) a registration statement
covering the issuance and sale of all of the Warrant Shares issuable under
this
Warrant (without giving effect to any restrictions on such exercise contained
herein) is not effective and available for such issuance and sale and (ii)
the
Fair Market Value (as defined below) is greater than the Exercise Price,
then
the Holder may notify the Company in an Exercise Notice of its election to
utilize cashless exercise, in which event the Company shall issue to the
Holder
the number of Warrant Shares determined as follows:
7
X
= Y [(A
- B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
Fair Market Value
B
= the
Exercise Price.
“Fair
Market Value”
shall
equal the average of the closing prices for the Trading Day immediately prior
to
(but not including) the Exercise Date. For purposes of Rule 144 promulgated
under the Securities Act, it is intended, understood and acknowledged that
the
Warrant Shares issued in a cashless exercise transaction shall be deemed
to have
been acquired by the Holder, and the holding period for the Warrant Shares
shall
be deemed to have commenced, on the date this Warrant was originally
issued.
11. Limitations
on Exercise.
Notwithstanding anything to the contrary contained herein, the number of
Warrant
Shares 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 of 1934, as
amended (the “Exchange
Act”),
does
not exceed 4.99% 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. 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 Fundamental Transaction as contemplated in
Section 9
of this
Warrant.
12. No
Fractional Shares.
No
fractional shares of Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of
such
fraction multiplied by the closing price of one Warrant Share as reported
by the
applicable Trading Market on the date of exercise.
8
13. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed
given
and effective on the earliest of (a) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number specified
in
this section prior to 6:30 p.m. (New York City time) on a Trading Day, (b)
the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this section
on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time)
on
any Trading Day, (c) the Trading Day following the date of mailing, if sent
by
nationally recognized overnight courier service, (d) the fifth day after
such
notice is deposited in the U.S. mail, certified, return receipt requested
and
postage prepaid, or (e) upon actual receipt by the party to whom such notice
is
required to be given. The addresses for such communications shall be: (i)
if to
the Company, to 0000 Xxxxx 00, Xxxxxxxx Xxxxxxxx, XX 00000, Attn: Chief
Executive Officer, or to facsimile no.: (000) 000-0000 (or such other address
as
the Company shall indicate in writing in accordance with this section), or
(ii)
if to the Holder, to the address set forth in the Purchase Agreement (or
the
address or facsimile number appearing on the Warrant Register or such other
address or facsimile number as the Holder may provide to the Company in
accordance with this section).
14. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 10 calendar
days’
notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged
or any
corporation resulting from any consolidation to which the Company or any
new
warrant agent shall be a party or any corporation to which the Company or
any
new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on
the Warrant Register.
15. Compliance
with Securities Laws.
The
Holder of this Warrant, by acceptance hereof, acknowledges and agrees as
follows:
(a) The
Warrant and the Warrant Shares to be issued upon exercise hereof are being
acquired solely for the Holder’s own account and not as a nominee for any other
party, and that the Holder will not offer, sell, or otherwise dispose of
this
Warrant or Warrant Shares to be issued upon exercise hereof or conversion
thereof except under circumstances that will not result in a violation of
the
Securities Act or any state securities laws. Upon exercise of this Warrant,
the
Holder shall, if reasonably requested by the Company, confirm in writing,
in a
form reasonably satisfactory to the Company, that the shares of Warrant Shares
so purchased are being acquired solely for the Holder’s own account and not as a
nominee for any other party, and not with a view toward distribution or resale
unless there is then an effective registration statement permitting the resale
of the Warrant Shares by the Holder.
(b) Xxxxxx
is
familiar with the definition of “accredited investor” in Rule 501 of Regulation
D promulgated under the Securities Act and certifies that Holder is an
accredited investor as defined in such rule.
(c) Holder
understands that neither this Warrant nor the Warrant Shares have been
registered under the Securities Act, and therefore they may not be sold,
assigned or transferred unless (i) a registration statement under the Securities
Act is in effect with respect thereto or (ii) an exemption from registration
is
found to be available to the satisfaction of the Company.
9
(d) Subject
the provisions of the Purchase Agreement, Holder acknowledges and agrees
that
the stock certificates evidencing the Warrant Shares shall bear a restrictive
legend, substantially in the following form (in addition to such other
restrictive legends as are required or deemed advisable under the provisions
of
this Warrant, any applicable law or regulation or any other agreement to
which
Holder is a party):
“THESE
SECURITIES 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 OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE
SECURITIES ACT.”
16. Miscellaneous.
(a) This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than
the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by
the
Company and the Holder and their successors and assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York (except for matters governed
by
corporate law in the State of Delaware), without regard to the principles
of
conflicts of law thereof. Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of this Warrant and
the
transactions herein contemplated (“Proceedings”)
(whether brought against a party hereto or its respective affiliates, employees
or agents) shall be commenced exclusively in the New York Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the New
York
Courts 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 Proceeding, any claim
that
it is not personally subject to the jurisdiction of any New York Court, or
that
such Proceeding has been commenced in an improper or inconvenient forum.
Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any such Proceeding by mailing a copy thereof
via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for 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. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable
law,
any and all right to trial by jury in any legal proceeding arising out of
or
relating to this Warrant or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of this Warrant,
then the prevailing party in such Proceeding shall be reimbursed by the other
party for its attorney’s fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
10
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(d) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon
a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) Prior
to
exercise of this Warrant, the Holder hereof shall not, by reason of being
a
Holder, be entitled to any rights of a stockholder with respect to the Warrant
Shares.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its
authorized officer as of the date first indicated above.
|
|
||
| EMAGIN CORPORATION | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name: Xxxx Xxxxxxx |
||
| Title: Chief Financial Officer | ||
12
EMAGIN
CORPORATION
WARRANT
DATED OCTOBER 20, 2005
EXERCISE
NOTICE
The
undersigned Holder hereby irrevocably elects to purchase _____________ shares
of
Common Stock of eMagin Corporation (the “Company”) pursuant to the above
referenced Warrant. Capitalized terms used herein and not otherwise defined
have
the respective meanings set forth in the Warrant.
(1) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(2) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
|
[
]
|
Cash
Exercise.
The undersigned has paid or delivered to the Company $__________,
the
aggregate Exercise Price for ___________ shares of the Company’s Common
Stock purchased herewith, in full in cash or by certified or official
bank
check or wire transfer.
|
|
[
]
|
Cashless
Exercise.
In exchange for the issuance of _______ shares of the Company’s Common
Stock, the undersigned hereby agrees to surrender the right to
purchase
_______ shares of Common Stock pursuant to the cashless exercise
provisions set forth in Section
00
the Warrant.
|
(3) Please
deliver to the undersigned Holder _______________ Warrant Shares in accordance
with the terms of the Warrant.
(5) By
its
delivery of this Exercise Notice, the undersigned represents and warrants
to the
Company that in giving effect to the exercise evidenced hereby the Holder
will
not beneficially own in excess of the number of shares of Common Stock
(determined in accordance with Section 13(d) of the Securities Exchange Act
of
1934, as amended) permitted to be owned under Section
0
of this
Warrant to which this notice relates.
|
Dated:
,
|
Name
of Holder:________________________________________
|
|
|
(Print)
|
||
|
Signature:_____________________________________________
|
||
|
(Signature
must conform in all respects to name of holder
as specified on the face of the Warrant)
|
||
|
Print
Name:____________________________________________
|
||
|
Title:
_____________________________________________________
|
13
EMAGIN
CORPORATION
WARRANT
DATED OCTOBER 20, 2005
WARRANT
no. ___
WARRANT
SHARES EXERCISE LOG
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
[continue
as necessary]
EMAGIN
CORPORATION
14
WARRANT
ORIGINALLY ISSUED OCTOBER 20, 2005
WARRANT
NO. ___
FORM
OF ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto the
transferee indicated below the right represented by the above-captioned Warrant
to purchase ____________ shares of Common Stock of eMagin Corporation (the
“Company”)
to
which such Warrant relates and appoints _____________________ attorney to
transfer said right on the books of the Company with full power of substitution
in the premises.
Dated: _______________,
____
| Holder: _______________________________________________________________ | |
|
(Print
Name)
|
|
|
Signature:
_____________________________________________________________
|
|
|
(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant. Indicate title if signing on behalf of an
entity.)
|
|
|
Transferee
Information:
|
|
| Name: ________________________________________________________________ | |
|
Address:
______________________________________________________________
|
|
| _____________________________________________________________ | |
| Fax No.: _______________________________________________________ | |
