FORM OF WARRANT STOCK PURCHASE WARRANT To Purchase __________ Shares of Common Stock of NEAH POWER SYSTEMS, INC.
FORM
OF WARRANT
STOCK
PURCHASE WARRANT
To
Purchase __________ Shares of Common Stock of
THIS
STOCK PURCHASE WARRANT CERTIFIES that, for value received, __________ (the
"Holder"),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or
after ,
2007 (the "Initial
Exercise Date")
and on
or prior to the close of business on the fifth anniversary of the Initial
Exercise Date (the "Termination
Date")
but
not thereafter, to subscribe for and purchase from Neah Power Systems, Inc.,
a
corporation incorporated in the State of Nevada (the "Company"),
up
to [an
amount equal to 75% of the total number of shares of common stock purchased
by
Holder in the offering] shares (the "Warrant
Shares")
of
Common Stock, par value $0.001 per share, of the Company (the "Common
Stock").
The
purchase price of one share of Common Stock (the "Exercise
Price")
under
this Warrant shall be $1.10 for up to one-third of the total number of Warrant
Shares, $1.60 for up to one-third of the total number of Warrant Shares, and
$2.o0 for up to one-third of the total number of Warrant Shares, subject to
adjustment hereunder. The Exercise Price and the number of Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as provided
herein.
1. Title
to Warrant. Prior
to the Termination Date and subject to compliance with applicable laws and
Section 7 of this Warrant, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by
the
Holder in person or by duly authorized attorney, upon surrender of this Warrant
together with the Assignment Form annexed hereto properly endorsed.
2. Authorization
of Shares. The
Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant, 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).
3. Exercise
of Warrant.
(a) Except
as
provided elsewhere herein, exercise of the purchase rights represented by this
Warrant may be made at any time or times on or after the Initial Exercise Date
and until 5:00 p.m. (Pacific time) on the Termination Date by the surrender
of this Warrant and the Notice of Exercise Form annexed hereto duly executed,
at
the office of the Company (or such other office or agency of the Company as
it
may designate by notice in writing to the registered Holder at the address
of
such Xxxxxx appearing on the books of the Company) and upon payment of the
Exercise Price of the shares thereby purchased by wire transfer or cashier's
check drawn on a United States bank, the Holder shall be entitled to receive
the
number of Warrant Shares so purchased. As soon as practicable after the exercise
of this Warrant and in any event within three Trading Days (as defined herein)
thereafter, upon the terms and subject to the conditions of this Warrant, the
Company at its expense will cause to be issued in the name of and delivered
to
the Holder, or as the Holder may direct to a broker or other persons, a
certificate or certificates for the number of Shares to which the Holder shall
be entitled on such exercise, in such denominations as may be requested by
the
Holder. In lieu of delivering physical certificates for the Warrant Shares
issuable upon any exercise of this Warrant, provided the Company's transfer
agent is participating in the Depository Trust Company ("DTC")
Fast
Automated Securities Transfer ("FAST")
program, upon request of the Holder, the Company shall use commercially
reasonable efforts to cause its transfer agent electronically to transmit such
Warrant Shares by crediting the account of the Holder's broker
with DTC
through its Deposit Withdrawal Agent Commission system (provided that the same
time limitations herein as for stock certificates shall apply).
(b) If
this
Warrant shall have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing Warrant Shares or
electronic transmittal of such Warrant Shares, deliver to Holder a new Warrant
evidencing the rights of Holder to purchase the unpurchased Warrant Shares
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
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4. No
Fractional Shares or Scrip. No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay
a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
5. Charges,
Taxes and Expenses. Issuance
of certificates for Warrant Shares shall be made without charge to the Holder
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
or
in such name or names as may be directed by the Holder; provided,
however,
that in
the event certificates for Warrant Shares are to be issued in a name other
than
the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
6. Closing
of Books. The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms hereof.
7. Transfer,
Division and Combination.
(a) Subject
to compliance with any applicable securities laws and the conditions set forth
in this Section 7, this Warrant and all rights hereunder are transferable,
in whole or in part, upon surrender of this Warrant at the principal office
of
the Company, together with a written assignment of this Warrant substantially
in
the form attached hereto duly executed by the Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the
portion of this Warrant not so assigned, and this Warrant shall promptly be
cancelled. A Warrant, if properly assigned, may be exercised by a new holder
for
the purchase of Warrant Shares without having a new Warrant issued.
(b)
This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c)
The
Company shall prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this Section 7. The Company agrees
to maintain, at its aforesaid office, books for the registration and the
registration of transfer of the Warrants.
(d)
This
Warrant is transferable only in connection with (a) bona fide gifts, (b)
dispositions to any trust for the direct or indirect benefit of the Holder
or
the immediate family of the Holder, (c) transfers
by the Holder to any direct
or
indirect affiliate,
as defined in Rule 405 under the Securities Act of 1933, of the Holder,
or
as
part of a distribution without consideration by the Holder to its equity holders
on a pro rata basis.
For
purposes of this paragraph, “immediate family” shall mean the undersigned and
the spouse, any lineal descendent, father, mother, brother or sister of the
Holder.
(e)
If,
at
the time of the surrender of this Warrant in connection with any transfer of
this Warrant, the transfer of this Warrant shall not be registered pursuant
to
an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws, the Company may require, as a
condition of allowing such transfer (i) that the Holder or transferee of
this Warrant, as the case may be, furnish to the Company a written opinion
of
counsel (which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that such transfer
may be made without registration under the Securities Act and under applicable
state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and substance
acceptable to the Company and (iii) that the transferee be an "accredited
investor" as defined in Rule 501(a) promulgated under the Securities Act or
a "qualified institutional buyer" as defined in Rule 144A promulgated under
the Securities Act.
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9. Loss,
Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which, in the case of the Warrant, shall not include the posting of any bond),
and 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 such Warrant or
stock certificate.
10. Saturdays,
Sundays, Holidays. 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 Saturday, Sunday or legal holiday.
11. Adjustments
of Exercise Price and Number of Warrant Shares. The
number and kind of securities purchasable upon the exercise of this Warrant
and
the Exercise 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 Warrant Shares
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
Warrant Shares 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 Warrant Shares
or
other securities of the Company which are purchasable hereunder, the Holder
shall thereafter be entitled to purchase the number of Warrant Shares or other
securities resulting from such adjustment at an Exercise Price per Warrant
Share
or other security obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares purchasable
pursuant hereto immediately prior to such adjustment and dividing by the number
of Warrant Shares 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.
12. Reorganization,
Reclassification, Merger, Consolidation or Disposition of
Assets. If,
at any time while this Warrant is outstanding, (A) the Company effects any
merger or consolidation of the Company with or into another entity, (B) the
Company effects any sale of all or substantially all of its assets in one or
a
series of related transactions, (C) any tender offer or exchange offer
(whether by the Company or another person or entity) is completed pursuant
to
which holders of Common Stock tender or exchange not less than 50% of the then
outstanding shares of Common Stock for other securities, cash or property,
or
(D) 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 (in any
such
case, a "Fundamental
Transaction"),
then,
upon any subsequent exercise of this Warrant, the Holder shall have the right
to
receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, 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 any additional consideration
(the "Alternate
Consideration")
receivable upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a holder of the number of Shares
for
which this Warrant is exercisable immediately prior to such event or (b) if
the Company is acquired in an all cash transaction, cash equal to the value
of
this Warrant as determined in accordance with the Black-Xxxxxxx-Xxxxxx Pricing
Model (as hereafter defined). 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. To the extent necessary to effectuate
the foregoing provisions, any successor to the Company or surviving entity
in
such Fundamental Transaction shall issue to the Holder a new warrant consistent
with the foregoing provisions and evidencing the holder's right to exercise
such
warrant into Alternate Consideration; provided that this Warrant shall have
been
cancelled or amended to the extent such cancellation or amendment is necessary
so that such new warrant does not unjustly or disproportionately enrich the
holder of the new warrant relative to a holder of the number of Warrant Shares
for which this Warrant is exercisable immediately prior to such event. 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 Section 12 and insuring that this Warrant (or any
such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction. For purposes hereof,
"Black-Xxxxxxx-Xxxxxx
Pricing Model"
means
the value determined using the Black-Xxxxxxx-Xxxxxx pricing model assuming
that
the Warrant had been assumed by the acquiring company and determining volatility
on an implied basis using pricing information for trading of options in the
stock of the acquiring company as of the date of determination or, if no such
pricing information is available, determining volatility on an historical basis
for the 12-month period prior to the date of determination.
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13. Registration
Statement; Black Out Period. The
Company shall use its commercially reasonable efforts to keep a registration
statement ("Registration Statement") with respect to the issuance and sale
of
the Warrant Shares continuously effective, supplemented, amended and current
until all Warrant Shares have been issued or all Warrants have expired,
whichever occurs earlier; provided
that
such obligation shall expire before such date if the Company delivers to the
Holder a written opinion of counsel to the Company that all Holders may resell
the Warrant Shares without registration under the Act and without restrictions
as to the manner, timing and volume of such sale. Notwithstanding the foregoing,
the Company shall not be required to amend or supplement the Registration
Statement, any related prospectus or any document incorporated therein by
reference and may suspend the availability of the Registration Statement (a
"Black Out Period") for a period of time not to exceed 30 days in each
instance and an aggregate of 60 days in any calendar year, (i) upon
the occurrence or existence of any pending corporate development or any other
material event as a result of which the Registration Statement, any related
prospectus or any document incorporated by reference therein as then amended
or
supplemented would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (ii) (A) the Company determines in good
faith and in its reasonable judgment that the disclosure of such event as such
time would not be in the best interests of the Company or (B) the
disclosure otherwise relates to a material business transaction which has not
yet been publicly disclosed. The Holder understands that, upon receipt of a
written notice (without notice of the nature or details of the events) from
the
Company of the commencement of a Black Out Period (as defined below) (each,
a
"Black Out Notice"), the Holder will promptly discontinue disposition of the
Warrant Shares pursuant to the Registration Statement until the earlier of
(i) the end of the Black Out Period and (ii) the date on which the
Holder is advised by the Company of the termination of the Black Out Period
and
the Holder receives copies of a supplemented or amended prospectus (or until
the
Holder is advised by the Company that the use of the Registration Statement
may
be resumed). If a Black Out Period is in effect on the Termination Date, then
the Termination Date shall be extended for the number of calendar days covered
by such Black Out Period.
14. Voluntary
Adjustment by the Company. The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate
by
the Board of Directors of the Company.
15. 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,
as herein provided, the Company shall give notice thereof to the Holder, which
notice shall state 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 (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.
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16. Notice
of Corporate Action. If
at any time:
(a)
the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend or other distribution, or any right
to
subscribe for or purchase any evidences of its indebtedness, any shares of
stock
of any class or any other securities or property, or to receive any other right,
or
(b)
there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with (other than a consolidation or merger in which the
Company is the surviving corporation), or any sale, transfer or other
disposition of all or substantially all the property, assets or business of
the
Company to, another corporation, or
(c)
there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of
the Company;
then,
in
any one or more of such cases, the Company shall give to Holder (i) at
least 20 days' prior written notice of the date on which a record date
shall be selected for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and
(ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, at least 20 days' prior written notice of the date when the same shall
take place. Such notice in accordance with the foregoing clause also shall
specify (y) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, the date on which the holders
of Common Stock shall be entitled to any such dividend, distribution or right,
and the amount and character thereof, and (z) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and the
time, if any such time is to be fixed, as of which the holders of Common Stock
shall be entitled to exchange their Warrant Shares for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Xxxxxx appearing on the books of the Company and
delivered in accordance with Section 18(c).
17. Authorized
Shares. The
Company covenants that during the period the Warrant is outstanding, 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 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 or regulation, or of any
requirements of the principal market upon which the Common Stock may then be
traded.
Except
and to the extent as waived or consented to by the Holder, the Company shall
not
by any action, including, without limitation, amending its articles of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this
Warrant, but will at all times in good faith assist in the carrying out of
all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the Company will
(a) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this Warrant.
18. Miscellaneous.
(a) Jurisdiction.
This
Warrant shall constitute a contract under the laws of the State of Nevada,
without regard to its conflict of law principles or rules.
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(b) Nonwaiver.
No
course of dealing or any delay or failure to exercise any right hereunder on
the
part of Holder shall operate as a waiver of such right or otherwise prejudice
Xxxxxx's rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date.
(c) Notices.
Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered by first class mail to Holder
at
the last address of Holder appearing on the books of the Company; provided
upon
any permitted assignment of this Warrant, the assignee shall promptly provide
the Company with its contact information.
(d) Limitation
of Liability.
No
provision hereof, in the absence of any affirmative action by Holder to exercise
this Warrant or purchase Warrant Shares, and no enumeration herein of the rights
or privileges of Holder, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the Company.
(e) Successors
and Assigns.
Subject
to applicable securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant and shall be enforceable by any such Holder
or
holder of Warrant Shares.
(f) Amendment.
This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the holders of Warrants representing
two-thirds of the Warrant Shares issuable under Warrants then outstanding as
of
the date such consent is sought; provided,
however,
that no
amendment may increase the Exercise Price,
decrease the number of shares or class of shares obtainable upon exercise of
this Warrant or decrease the time period in which this Warrant can be exercised
without the written consent of each Holder.
(g) Severability.
Wherever 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 shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(h)
Headings.
The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
(i)
Remedies.
Holder,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
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Dated: ,
2007
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By:
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Name:
Title:
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6
NOTICE
OF EXERCISE
(1) The
undersigned hereby elects to
purchase Warrant
Shares of Neah Power Systems, Inc. pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price
in full, together with all applicable transfer taxes, if any.
(2)
Payment
shall take the form of (check applicable box):
o
wire
transfer
o
cashier's
check
(3)
Please
issue a certificate or certificates representing said Warrant Shares in the
name
of the undersigned or in such other name as is specified below:
The
Warrant Shares shall be delivered to the following:
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[NAME
OF PURCHASER]
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By:
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Name:
Title:
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Dated:
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ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby assigned to
whose
address is
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Dated:
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,
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Xxxxxx's
Signature:
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Holder's
Address:
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Signature
Guaranteed:
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NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
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