COMMON STOCK PURCHASE WARRANT VISIUM TECHNOLOGIES, INC.
NEITHER
THIS SECURITY NOR THE SECURITIES AS TO WHICH THIS SECURITY MAY BE
EXERCISED 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.
THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
Warrant
Shares: 22,172,949
Date of
Issuance: January 12, 2021 (“Issuance
Date”)
This
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that,
for value received (in connection with the issuance of the
self-amortization promissory note in the principal amount of
$200,000.00 to the Holder (as defined below) of even date) (the
“Note”), Labrys Fund, LP, a Delaware limited
partnership (including any permitted and registered assigns, 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 the date
of issuance hereof, to purchase from VISIUM TECHNOLOGIES, INC., a
Florida corporation (the “Company”), 22,172,949
shares of Common Stock (the “Warrant Shares”) (whereby
such number may be adjusted from time to time pursuant to the terms
and conditions of this Warrant) at the Exercise Price per share
then in effect. This Warrant is issued by the Company as of the
date hereof in connection with that certain securities purchase
agreement dated January 12, 2021, by and among the Company and the
Holder (the “Purchase
Agreement”).
Capitalized terms
used in this Warrant shall have the meanings set forth in the
Purchase Agreement unless otherwise defined in the body of this
Warrant or in Section 12 below. For purposes of this Warrant, the
term “Exercise Price” shall mean 110% of the closing
price of the Common Stock on the Issuance Date, subject to
adjustment as provided herein (including but not limited to
cashless exercise), and the term “Exercise Period”
shall mean the period commencing on the Issuance Date and ending on
5:00 p.m. eastern standard time on the two-year anniversary
thereof.
1.
EXERCISE OF
WARRANT.
(a) Mechanics of Exercise. Subject to the
terms and conditions hereof, the rights represented by this Warrant
may be exercised in whole or in part at any time or times during
the Exercise Period by delivery of a written notice, in the form
attached hereto as Exhibit
A (the “Exercise Notice”), of the
Holder’s election to exercise this Warrant. The Holder shall
not be required to deliver the original Warrant in order to effect
an exercise hereunder. Partial exercises of this Warrant resulting
in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the
outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased.
On or before the second Trading Day (the “Warrant Share Delivery
Date”) following the date on which the Holder sent the
Exercise Notice to the Company or the Company’s transfer
agent, and upon receipt by the Company of payment to the Company of
an amount equal to the applicable Exercise Price multiplied by the
number of Warrant Shares
as to
which all or a portion of this Warrant is being exercised (the
“Aggregate Exercise
Price” and together with the Exercise Notice, the
“Exercise Delivery
Documents”) in cash or by wire transfer of immediately
available funds (or by cashless exercise, in which case there shall
be no Aggregate Exercise Price provided), the Company shall (or
direct its transfer agent to) issue and dispatch by overnight
courier to the address as specified in the Exercise Notice, a
certificate, registered in the Company’s share register in
the name of the Holder or its designee, for the number of shares of
Common Stock to which the Holder is entitled pursuant to such
exercise (or deliver such shares of Common Stock in electronic
format if requested by the Holder). Upon delivery of the Exercise
Delivery Documents, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the certificates evidencing such Warrant
Shares. If this Warrant is submitted in connection with any
exercise and the number of Warrant Shares represented by this
Warrant submitted for exercise is greater than the number of
Warrant Shares being acquired upon an exercise, then the Company
shall as soon as practicable and in no event later than three
Business Days after any exercise and at its own expense, issue a
new Warrant (in accordance with Section 6) representing the right
to purchase the number of Warrant Shares purchasable immediately
prior to such exercise under this Warrant, less the number of
Warrant Shares with respect to which this Warrant
isexercised.
If the
Company fails to cause its transfer agent to transmit to the Holder
the respective shares of Common Stock by the respective Warrant
Share Delivery Date, then the Holder will have the right to rescind
such exercise in Holder’s sole discretion in addition to all
other rights and remedies at law or otherwise, and such failure
shall also be deemed an event of default under the
Note.
If the
Market Price of one share of Common Stock is greater than the
Exercise Price, then the Holder may elect to receive Warrant Shares
pursuant to a cashless exercise, in lieu of a cash exercise, equal
to the value of this Warrant determined in the manner described
below (or of any portion thereof remaining unexercised) by
surrender of this Warrant and a Notice of Exercise, in which event
the Company shall issue to Holder a number of Common Stock computed
using the following formula:
X =
Y
(A-B)
A
Where X
=
the number of
Shares to be issued to Holder.
Y
=
the number of
Warrant Shares that the Holder elects to purchase under this
Warrant (at the date of such calculation).
A
=
the Market Price
(at the date of such calculation).
B
=
Exercise Price (as
adjusted to the date of such calculation).
(b) No Fractional Shares. No fractional
shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Warrant Shares
(including fractions) issuable upon exercise of this Warrant may be
aggregated for purposes of determining whether the exercise would
result in the issuance of any fractional share. If, after
aggregation, the exercise would result in the issuance of a
fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from
multiplying the then-current fair market value of a Warrant Share
by such fraction.
(c) Xxxxxx’s Exercise Limitations.
Notwithstanding anything to the contrary contained herein, the
Company shall not effect any exercise of this Warrant, and a Holder
shall not have the right to exercise any portion of this Warrant,
pursuant to Section 1 or otherwise, to the extent that after giving
effect to such issuance after exercise as set forth on the
applicable Notice of Exercise, the Holder (together with the
Holder’s
affiliates (the
“Affiliates”), and any other Persons acting as a group
together with the Holder or any of the Holder’s Affiliates
(such Persons, “Attribution Parties”)), would
beneficially own in excess of the Beneficial Ownership Limitation
(as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder
and Attribution Parties shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to
which such determination is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (i)
exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or
Attribution Parties and (ii) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the
Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by
the Holder or any of its Affiliates or Attribution Parties. Except
as set forth in the preceding sentence, for purposes of this
Section 1(c), beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, it being acknowledged by the
Holder that the Holder is solely responsible for any schedules
required to be filed in accordance therewith. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. For purposes of
this Section 1(c), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most
recent periodic or annual report filed with the Commission, as the
case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally and in writing
to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this
Warrant, by the Holder or its Affiliates or Attribution Parties
since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of the
Common Stock outstanding at the time of the respective calculation
hereunder. The limitations contained in this paragraph shall apply
to a successor holder of this Warrant.
2. ADJUSTMENTS. The Exercise Price
and the number of Warrant Shares shall be adjusted from time to
time as follows:
(a) Distribution of Assets. If the Company
shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of
Common Stock, by way of return of capital or otherwise (including
without limitation any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement or other similar
transaction) (a “Distribution”), at any
time after the issuance of this Warrant, then, in each such
case:
(i) any Exercise Price
in effect immediately prior to the close of business on the record
date fixed for the determination of holders of shares of Common
Stock entitled to receive the Distribution shall be reduced,
effective as of the close of business on such record date, to a
price determined by multiplying such Exercise Price by a fraction
(i) the numerator of which shall be the Closing Sale Price of the
shares of Common Stock on the Trading Day immediately preceding
such record date minus the value of the Distribution (as determined
in good faith by the Company’s Board of Directors) applicable
to one share of Common Stock, and (ii) the denominator of which
shall be the Closing Sale Price of the shares of Common Stock on
the Trading Day immediately preceding such record date;
and
(ii) the
number of Warrant Shares shall be increased to a number of shares
equal to the number of shares of Common Stock obtainable
immediately prior to the close of business on the record date fixed
for the determination of holders of shares of Common Stock entitled
to receive the Distribution multiplied by the reciprocal of the
fraction set forth in the immediately preceding clause
(i);
provided, however,
that in the event that the Distribution is of shares of common
stock of a company (other than the Company) whose common stock is
traded on a national securities exchange or a national automated
quotation system (“Other Shares of Common
Stock”), then the Holder may elect to receive a
warrant to purchase Other Shares of Common Stock in lieu of an
increase in the number of Warrant Shares, the terms of which shall
be identical to those of this Warrant, except that such warrant
shall be exercisable into the number of shares of Other Shares of
Common Stock that would have been payable to the Holder pursuant to
the Distribution had the Holder exercised this Warrant immediately
prior to such record date and with an aggregate exercise price
equal to the product of the amount by which the exercise price of
this Warrant was decreased with respect to the Distribution
pursuant to the terms of the immediately preceding clause (i) and
the number of Warrant Shares calculated in accordance with the
first part of this clause (ii).
(b) Anti-Dilution Adjustments to Exercise
Price. If the Company or any Subsidiary thereof, as
applicable, at any time while this Warrant is outstanding, shall
sell or grant any option to purchase, or sell or grant any right to
reprice, or otherwise dispose of or issue (or announce any offer,
sale, grant or any option to purchase or other disposition) any
Common Stock or securities entitling any person or entity to
acquire shares of Common Stock (upon conversion, exercise or
otherwise) (including but not limited to the price at which Common
Stock is issued under the Note), at an effective price per share
less than the then Exercise Price (such lower price, the
“Base Share Price” and such issuances collectively, a
“Dilutive Issuance”) (if the holder of the Common Stock
or Common Stock Equivalents so issued shall at any time, whether by
operation of purchase price adjustments, elimination of an
applicable floor price for any reason in the future (including but
not limited to the passage of time or satisfaction of certain
condition(s)), reset provisions, floating conversion, exercise or
exchange prices or otherwise, or due to warrants, options or rights
per share which are issued in connection with such issuance, be
entitled or potentially entitled to receive shares of Common Stock
at an effective price per share which is less than the Exercise
Price at any time while such Common Stock or Common Stock
Equivalents are in existence, such issuance shall be deemed to have
occurred for less than the Exercise Price on such date of the
Dilutive Issuance (regardless of whether the Common Stock or Common
Stock Equivalents are (i) subsequently redeemed or retired by the
Company after the date of the Dilutive Issuance or (ii) actually
converted or exercised at such Base Share Price), then the Exercise
Price shall be reduced at the option of the Holder and only reduced
to equal the Base Share Price. Such adjustment shall be made
whenever such Common Stock or Common Stock Equivalents are issued,
regardless of whether the Common Stock or Common Stock Equivalents
are (i) subsequently redeemed or retired by the Company after the
date of the Dilutive Issuance or (ii) actually converted or
exercised at such Base Share Price by the holder thereof (for the
avoidance of doubt, the Holder may utilize the Base Share Price
even if the Company did not actually issue shares of its common
stock at the Base Share Price under the respective Common stock
Equivalents). The Company shall notify the Holder in writing, no
later than the Trading Day following the issuance of any Common
Stock or Common Stock Equivalents subject to this Section 2(b),
indicating therein the applicable issuance price, or applicable
reset price, exchange price, conversion price and other pricing
terms (such notice the “Dilutive Issuance Notice”). For
purposes of clarification, whether or not the Company provides a
Dilutive Issuance Notice pursuant to this Section 2(b), upon the
occurrence of any Dilutive Issuance, after the date of such
Dilutive Issuance the Holder is entitled to receive a number of
Warrant Shares based upon the Base Share Price regardless of
whether the Holder accurately refers to the Base Share Price in the
Notice of Exercise.
(c) Subdivision or Combination of Common
Stock. If the Company at any time on or after the Issuance
Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares
will be proportionately increased. If the Company at any time on or
after the Issuance Date combines (by combination, reverse stock
split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased. Any adjustment under this Section 2(c)
shall become effective at the close of business on the date the
subdivision or combination becomes effective. Each such adjustment
of the Exercise Price shall be calculated to the nearest
one-hundredth of a cent. Such adjustment shall be made successively
whenever any event covered by this Section 2(c) shall
occur.
3. FUNDAMENTAL TRANSACTIONS. If,
at any time while this Warrant is outstanding, (i) the Company
effects any merger of the Company with or into another entity and
the Company is not the surviving entity (such surviving entity, the
“Successor
Entity”), (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related
transactions, (iii) any tender offer or exchange offer (whether by
the Company or by another individual or entity, and approved by the
Company) is completed pursuant to which holders of Common Stock are
permitted to tender or exchange their shares of Common Stock for
other securities, cash or property and the holders of at least 50%
of the Common Stock accept such offer, or (iv) 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
(other than as a result of a subdivision or combination of shares
of Common Stock) (in any such case, a “Fundamental
Transaction”), then, upon any subsequent exercise of
this Warrant, the Holder shall have the right to receive the number
of shares of Common Stock of the Successor Entity or of the Company
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 of Common Stock for which this
Warrant is exercisable immediately prior to such event
(disregarding any limitation on exercise contained herein solely
for the purpose of such determination). 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 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.
4. NON-CIRCUMVENTION. The Company
covenants and agrees that it will not, by amendment of its
certificate of incorporation, bylaws or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement,
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, and will at all times in good faith
carry out all the provisions of this Warrant and take all action as
may be required to protect the rights of the Holder. Without
limiting the generality of the foregoing, the Company (i) shall not
increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the Exercise Price then in
effect, (ii) shall take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon the
exercise of this Warrant, and (iii) shall, for so long as this
Warrant is outstanding, have authorized and reserved, free from
preemptive rights, one and a half (1.5) times the number of shares
of Common Stock into which the Warrants are then exercisable into
to provide for the exercise of the rights represented by this
Warrant (without regard to any limitations on
exercise).
5. WARRANT HOLDER NOT DEEMED A
STOCKHOLDER. Except as otherwise specifically provided
herein, this Warrant, in and of itself, shall not entitle the
Holder to any voting rights or other rights as a stockholder of the
Company. In addition, nothing contained in this Warrant shall be
construed as imposing any liabilities on the Holder to purchase any
securities (upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted
by the Company or by creditors of the Company.
6.
REISSUANCE.
(a) Lost,
Stolen or Mutilated Warrant. If this Warrant is lost,
stolen, mutilated or destroyed, the Company will, on such terms as
to indemnity or otherwise as it may reasonably impose (which shall,
in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as this Warrant
so lost, stolen, mutilated or destroyed.
(b) Issuance of New Warrants. Whenever the
Company is required to issue a new Warrant pursuant to the terms of
this Warrant, such new Warrant shall be of like tenor with this
Warrant, and shall have an issuance date, as indicated on the face
of such new Warrant which is the same as the Issuance
Date.
7. TRANSFER. This Warrant shall be
binding upon the Company and its successors and assigns, and shall
inure to be the benefit of the Holder and its successors and
assigns. Notwithstanding anything to the contrary herein, the
rights, interests or obligations of the Company hereunder may not
be assigned, by operation of law or otherwise, in whole or in part,
by the Company without the prior signed written consent of the
Holder, which consent may be withheld at the sole discretion of the
Holder (any such assignment or transfer shall be null and void if
the Company does not obtain the prior signed written consent of the
Holder). This Warrant or any of the severable rights and
obligations inuring to the benefit of or to be performed by Holder
hereunder may be assigned by Xxxxxx to a third party, in whole or
in part, without the need to obtain the Company’s consent
thereto.
8. NOTICES. Whenever notice is
required to be given under this Warrant, unless otherwise provided
herein, such notice shall be given in accordance with the notice
provisions contained in the Purchase Agreement. The Company shall
provide the Holder with prompt written notice (i) immediately upon
any adjustment of the Exercise Price, setting forth in reasonable
detail, the calculation of such adjustment and (ii) at least 20
days prior to the date on which the Company closes its books or
takes a record (A) with respect to any dividend or distribution
upon the shares of Common Stock, (B) with respect to any grants,
issuances or sales of any stock or other securities directly or
indirectly convertible into or exercisable or exchangeable for
shares of Common Stock or other property, pro rata to the holders
of shares of Common Stock or (C) for determining rights to vote
with respect to any Fundamental Transaction, dissolution or
liquidation, provided in each case that such information shall be
made known to the public prior to or in conjunction with such
notice being provided to the Holder.
9. AMENDMENT AND WAIVER. The terms
of this Warrant may be amended or waived (either generally or in a
particular instance and either retroactively or prospectively) only
with the written consent of the Company and the
Holder.
10. GOVERNING LAW AND VENUE. This
Warrant shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to principles of
conflicts of laws. Any action brought by either party against the
other concerning the transactions contemplated by this Warrant
shall be brought only in the state courts located in the
Commonwealth of Massachusetts or federal courts located in
Commonwealth of Massachusetts. The parties to this Warrant hereby
irrevocably waive any objection to jurisdiction and venue of any
action instituted hereunder and shall not assert any defense based
on lack of jurisdiction or venue or based upon forum non conveniens. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER
TRANSACTION DOCUMENT ENTERED INTO IN CONNECTION WITH OR ARISING OUT
OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY. The prevailing
party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any
provision of this Warrant or any other agreement delivered in
connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of any agreement. Each party hereby irrevocably
waives personal service of process and consents to process being
served in any suit, action or proceeding in connection with this
Agreement or any other Transaction Document 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 Agreement 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 other manner permitted by
law.
11. ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and
agreement to all of the terms and conditions contained
herein.
12. CERTAIN DEFINITIONS. For
purposes of this Warrant, the following terms shall have the
following meanings:
(a)
“Nasdaq” means
xxx.Xxxxxx.xxx.
(b) “Closing Sale Price”
means, for any security as of any date, (i) the last closing trade
price for such security on the Principal Market, as reported by
Nasdaq, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing trade
price, then the last trade price of such security prior to 4:00
p.m., New York time, as reported by Nasdaq, or (ii) if the
foregoing does not apply, the last trade price of such security in
the over-the-counter market for such security as reported by
Nasdaq, or (iii) if no last trade price is reported for such
security by Nasdaq, the average of the bid and ask prices of any
market makers for such security as reported by the OTC Markets. If
the Closing Sale Price cannot be calculated for a security on a
particular date on any of the foregoing bases, the Closing Sale
Price of such security on such date shall be the fair market value
as mutually determined by the Company and the Holder. All such
determinations to be appropriately adjusted for any stock dividend,
stock split, stock combination or other similar transaction during
the applicable calculation period.
(c) “Common Stock” means the
Company’s common stock, and any other class of securities
into which such securities may hereafter be reclassified or
changed.
(d) “Common Stock Equivalents”
means any securities of the Company that would entitle the holder
thereof to acquire at any time Common Stock, including without
limitation any debt, preferred stock, rights, options, warrants or
other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock.
(e)
[Intentionally
Omitted].
(f) “Person” and
“Persons” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and any governmental entity or any department or
agency thereof.
(g) “Principal Market” means
the primary national securities exchange on which the Common Stock
is then traded.
(h) “Market Price” means the
highest traded price of the Common Stock during the one hundred and
fifty Trading Days prior to the date of the respective Exercise
Notice.
(i) “Trading Day” means (i)
any day on which the Common Stock is listed or quoted and traded on
its Principal Market, (ii) if the Common Stock is not then listed
or quoted and traded on any national securities exchange, then a
day on which trading occurs on any over-the-counter markets, or
(iii) if trading does not occur on the over-the-counter markets,
any Business Day.
* * * *
* * *
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed as of the Issuance Date set forth above.
s/s Mark
Lucky_______________
Name:
Mark Lucky
Title:
Chief Executive Officer
