[EXHIBIT 3.6]
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE AFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
INYX, INC.
WARRANT TO PURCHASE SHARES
(SUBJECT TO ADJUSTMENT)
OF COMMON STOCK
(Void after August 2, 2009)
No:_____________
This certifies that for value, _________________________, or
registered assigns (the "Holder"), is entitled, subject to the terms set
forth below, at any time from and after August 2, 2004 (the "Original
Issuance Date") and before 5:00 p.m., Eastern Time, on August 2, 2009
(the "Expiration Date"), to purchase from INYX, Inc., a Nevada
corporation (the "Company"), ______________________________ shares
(subject to adjustment as described herein), of common stock, par value
$0.001 per share, of the Company (the "Common Stock"), upon surrender
hereof, at the principal office of the Company referred to below, with
a duly executed subscription form in the form attached hereto as Exhibit
A and simultaneous payment therefor in lawful, immediately available
money of the United States or otherwise as hereinafter provided, at an
initial exercise price per share of $1.01 (the "Purchase Price");
provided, however, that notwithstanding anything to the contrary
provided herein or elsewhere: (i) the Purchase Price shall be
increased by two (2%) percent (but no more than cumulatively twenty
(20%) percent) for every $2 million of net revenues of the Company
above U.S. $35 million for the twelve (12) months ended December 31,
2005 and U.S. $55 million for the twelve (12) months ended December
31, 2006; and (ii) the Purchase Price shall be decreased by five (5%)
percent (but no more than cumulatively fifty (50%) percent) for every
U.S. $2 million that net revenues of the Company are below U.S. $35
million for the twelve (12) months ended December 31, 2005 and U.S.
$55 million for the twelve (12) months ended December 31, 2006. "Net
revenues" shall be as set forth in the Company's audited financial
statements included in the Company's Annual Report on Form 10-KSB (or
such other similar report) for the applicable fiscal year. The
Purchase Price is subject to further adjustment as provided below, and
the term "Common Stock" shall include, unless the context otherwise
requires, the stock and other securities and property at the time
receivable upon the exercise of this Warrant. The term "Warrants," as
used herein, shall mean this Warrant and any other Warrants delivered
in substitution or exchange therefor as provided herein.
This Warrant was issued in connection with a private placement of
the Company's securities pursuant to the Company's Securities Purchase
Agreement, dated as of August 2, 2004 (the "SPA"), pursuant to which
the Company sold to the Holder shares of Common Stock and Warrants
(the "Offering").
1. Exercise. This Warrant may be exercised at any time or from
--------
time to time from and after the Original Issuance Date and before
5:00 p.m., Eastern Time, on August 2, 2009, on any business day, for
the full number of shares of Common Stock called for hereby, by
surrendering it at the principal office of the Company, at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with the subscription form duly
executed, together with payment in an amount equal to (a) the number
of shares of Common Stock called for on the face of this Warrant, as
adjusted in accordance with the preceding paragraph of this Warrant
(without giving effect to any further adjustment herein) multiplied
(b) by the Purchase Price. Payment of the Purchase Price may be made
at Holder's choosing either: (1) by payment in immediately available
funds; or (2) in lieu of any cash payment, if this Warrant is
exercised on a date following the date one (1) year from the Original
Issuance Date and the Registration Statement (as defined in the SPA)
covering the shares of Common Stock issuable upon exercise of this
Warrant has not been declared effective by the Commission (as defined
in the SPA), or is no longer in effect, in exchange for the number of
shares of Common Stock equal to the product of (x) the number of
shares to which the Warrants are being exercised multiplied by (y) a
fraction, the numerator of which is the Purchase Price and the
denominator of which is the Fair Market Value (as defined below). This
Warrant may be exercised for less than the full number of shares of
Common Stock at the time called for hereby, except that the number of
shares receivable upon the exercise of this Warrant as a whole, and
the sum payable upon the exercise of this Warrant as a whole, shall be
proportionately reduced. Upon a partial exercise of this Warrant in
accordance with the terms hereof, this Warrant shall be surrendered,
and a new Warrant of the same tenor and for the purchase of the number
of such shares not purchased upon such exercise shall be issued by the
Company to Holder without any charge therefor. A Warrant shall be
deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above,
and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the holder of
such shares of record as of the close of business on such date. Within
two business days after such date, the Company shall issue and deliver
to the person or persons entitled to receive the same a certificate or
certificates for the number of full shares of Common Stock issuable
upon such exercise, together with cash, in lieu of any fraction of a
share, equal to such fraction of the then Fair Market Value on the
date of exercise of one full share of Common Stock.
"Fair Market Value" shall mean, as of any date: (i) if shares of
the Common Stock are listed on a national securities exchange, the
average of the closing prices as reported for composite transactions
during the five (5) consecutive trading days preceding the trading day
immediately prior to such date or, if no sale occurred on a trading
day, then the mean between the closing bid and asked prices on such
exchange on such trading day; (ii) if shares of the Common Stock are
not so listed but are traded on the Nasdaq SmallCap Market ("NSCM"),
the average of the closing prices as reported on the NSCM during the
five (5) consecutive trading days preceding the trading day
-2-
immediately prior to such date or, if no sale occurred on a trading
day, then the mean between the highest bid and lowest asked prices as
of the close of business on such trading day, as reported on the NSCM;
or if applicable, the Nasdaq National Market ("NNM"), or if not then
included for quotation on the NNM or NSCM, the average of the highest
reported bid and lowest reported asked prices as reported by the OTC
Bulletin Board or the National Quotations Bureau, as the case may be;
or (iii) if the shares of the Common Stock are not then publicly
traded, the fair market price of the Common Stock as determined in
good faith by the Board of Directors of the Company.
2. Shares Fully Paid; Payment of Taxes. All shares of Common
-----------------------------------
Stock issued upon the exercise of a Warrant shall be validly issued,
fully paid and non-assessable, and the Company shall pay all taxes and
other governmental charges (other than income taxes to the holder)
that may be imposed in respect of the issue or delivery thereof.
3. Transfer and Exchange. This Warrant and all rights
---------------------
hereunder are transferable, in whole or in part, on the books of the
Company maintained for such purpose at its principal office referred
to above by Holder in person or by duly authorized attorney, upon
surrender of this Warrant together with a completed and executed
assignment form in the form attached as Exhibit B, payment of any
necessary transfer tax or other governmental charge imposed upon such
transfer and an opinion of counsel reasonably acceptable the Company
stating that such transfer is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933
Act"). Upon any partial transfer, the Company will issue and deliver
to Holder a new Warrant or Warrants with respect to the shares of
Common Stock not so transferred. Each taker and holder of this
Warrant, by taking or holding the same, consents and agrees that this
Warrant when endorsed in blank shall be deemed negotiable and that
when this Warrant shall have been so endorsed, the holder hereof may
be treated by the Company and all other persons dealing with this
Warrant as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby, or to the transfer
hereof on the books of the Company, any notice to the contrary
notwithstanding; but until such transfer on such books, the Company
may treat the registered Holder hereof as the owner for all purposes.
This Warrant is exchangeable at such office for Warrants
for the same aggregate number of shares of Common Stock, each new
Warrant to represent the right to purchase such number of shares as
the Holder shall designate at the time of such exchange.
4. Anti-Dilution Provisions.
------------------------
A. Adjustment for Dividends in Other Stock and Property
----------------------------------------------------
Reclassifications. In case at any time or from time to time the
-----------------
holders of the Common Stock (or any shares of stock or other
securities at the time receivable upon the exercise of this Warrant)
shall have received, or, on or after the record date fixed for the
determination of eligible shareholders, shall have become entitled to
receive, without payment therefor,
(1) other or additional stock or other securities or
property (other than cash) by way of dividend,
-3-
(2) any cash or other property paid or payable out of
any source other than retained earnings (determined in accordance with
generally accepted accounting principles), or
(3) other or additional stock or other securities or
property (including cash) by way of stock-split, spin-off,
reclassification, combination of shares or similar corporate
rearrangement (other than (x) additional shares of Common Stock or any
other stock or securities into which such Common Stock shall have been
changed, (y) any other stock or securities convertible into or
exchangeable for such Common Stock or such other stock or securities
or (z) any stock purchase rights, issued as a stock dividend or stock-
split, adjustments in respect of which shall be covered by the terms
of Section 4.C, 4.D or 4.E), then and in each such case, Holder, upon
the exercise hereof as provided in Section 1, shall be entitled to
receive the amount of stock and other securities and property
(including cash in the cases referred to in clauses (2) and (3) above)
which such Holder would hold on the date of such exercise if on the
Original Issuance Date Holder had been the holder of record of the
number of shares of Common Stock called for on the face of this
Warrant, as adjusted in accordance with the first paragraph of this
Warrant, and had thereafter, during the period from the Original
Issuance Date to and including the date of such exercise, retained
such shares and/or all other or additional stock and other securities
and property (including cash in the cases referred to in clause (2)
and (3) above) receivable by it as aforesaid during such period,
giving effect to all adjustments called for during such period by
Section 4.A and Section 4.B.
B. Adjustment for Reorganization, Consolidation and
------------------------------------------------
Merger. In case of any reorganization of the Company (or any other
------
corporation the stock or other securities of which are at the time
receivable on the exercise of this Warrant) after the Original
Issuance Date, or in case, after such date, the Company (or any such
other corporation) shall consolidate with or merge into another
corporation or entity or convey all or substantially all its assets to
another corporation or entity, then and in each such case Holder, upon
the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the stock or
other securities and property receivable upon the exercise of this
Warrant prior to such consummation, the stock or other securities or
property to which such Holder would have been entitled upon such
consummation if Holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in
Sections 4.A, 4.B, 4.C, 4.D, and 4.E; in each such case, the terms of
this Warrant shall be applicable to the shares of stock or other
securities or property receivable upon the exercise of this Warrant
after such consummation.
C. Sale of Shares Below Purchase Price.
-----------------------------------
(1) Subject to the exceptions set forth in Section
4.C(5), until the earlier to occur of (i) the effective date of a
public offering of the Company's securities at no less than 75% of the
then current Purchase Price of this Warrant and in which no less than
$5,000,000 in gross proceeds are raised, and (ii) the date eighteen
(18) months following the Original Issuance Date, if the Company
issues or sells, or is deemed by the express provisions of this
Section 4.C to have issued or sold, Additional Shares of Common Stock
(as hereinafter defined), other than as a dividend or other
distribution on any class of stock as provided in Section 4.D and
other than upon a subdivision or combination of shares of Common Stock
-4-
as provided in Section 4.E, for an Effective Price (as hereinafter
defined) less than the then existing Purchase Price, then and in each
such case:
(A) the then existing Purchase Price shall be
reduced, as of the opening of business on the date of such issue or
sale, as follows: the Purchase Price shall be reduced to a price
determined by multiplying that Purchase Price by a fraction (i) the
numerator of which shall be (a) the number of shares of Common Stock
outstanding at the close of business on the day next preceding the
date of such issue or sale, plus (b) the number of shares of Common
Stock which the aggregate consideration received (or by the express
provisions hereof deemed to have been received) by the Company for the
total number of Additional Shares of Common Stock so issued would
purchase at the Effective Price, plus (c) the number of shares of
Common Stock for which all Warrants, and all other options and
warrants outstanding as of the Original Issuance Date that are
exercisable for shares of Common Stock are exercisable at the Purchase
Price in effect at the close of business on the date next preceding
the date of such issue or sale, plus (d) the number of shares of
Common Stock underlying all Other Securities (as hereinafter defined)
at the close of business on the date next preceding the date of such
issue or sale, and (ii) the denominator of which shall be (a) the
number of shares of Common Stock outstanding at the close of business
on the date of such issue or sale after giving effect to such issue of
Additional Shares of Common Stock, plus (b) the number of shares of
Common Stock for which all Warrants and all other options and warrants
outstanding on the Original Issuance Date that are exercisable for
shares of Common Stock are exercisable at the Purchase Price in effect
at the close of business on the date next preceding the date of such
issue or sale, plus (c) the number of shares of Common Stock
underlying the Other Securities at the close of business on the date
next preceding the date of such issue or sale; and
(2) For the purpose of making any adjustment required
under this Section 4.C, the consideration received by the Company for
any issue or sale of securities shall (i) to the extent it consists of
cash be computed at the amount of cash received by the Company,
(ii) to the extent it consists of property other than cash, be
computed at the fair value of that property as determined in good
faith by the Board, (iii) if Additional Shares of Common Stock,
Convertible Securities (as hereinafter defined) or rights or options
to purchase either Additional Shares of Common Stock or Convertible
Securities are issued or sold together with other stock or securities
or other assets of the Company for a consideration which covers both,
be computed as the portion of the consideration so received that may
be reasonably determined in good faith by the Board to be allocable to
such Additional Shares of Common Stock, Convertible Securities or
rights or options, and (iv) be computed after reduction for all
expenses payable by the Company in connection with such issue or sale.
(3) For the purpose of the adjustment required under
this Section 4.C, if the Company issues or sells any rights or options
for the purchase of, or stock or other securities convertible into or
exchangeable for, Additional Shares of Common Stock (such convertible
or exchangeable stock or securities being hereinafter referred to as
"Convertible Securities") and if the Effective Price of such
Additional Shares of Common Stock is less than the Purchase Price then
in effect, then the Company shall be deemed to have issued at the time
of the issuance of such rights or options or Convertible Securities
the maximum number of Additional Shares of Common Stock issuable upon
exercise, conversion or exchange thereof and to have received as
consideration for the issuance of such shares an amount equal to the
total amount of the consideration, if any, received by the Company for
-5-
the issuance of such rights or options or Convertible Securities,
plus, in the case of such rights or options, the minimum amounts of
consideration, if any, payable to the Company upon the exercise of
such rights or options, plus, in the case of Convertible Securities,
the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) upon the conversion or exchange thereof.
No further adjustment of the Purchase Price, adjusted upon the
issuance of such rights, options or Convertible Securities, shall be
made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the conversion
or exchange of any such Convertible Securities. If any such rights or
options or the conversion or exchange privilege represented by any
such Convertible Securities shall expire without having been
exercised, the Purchase Price adjusted upon the issuance of such
rights, options or Convertible Securities shall be readjusted to the
Purchase Price which would have been in effect had an adjustment been
made on the basis that the only Additional Shares of Common Stock so
issued were the Additional Shares of Common Stock, if any, actually
issued or sold on the exercise of such rights or options or rights of
conversion or exchange of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise,
plus the consideration, if any, actually received by the Company for
the granting of all such rights or options, whether or not exercised,
plus the consideration received for issuing or selling the Convertible
Securities actually converted or exchanged, plus the consideration, if
any, actually received by the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible Securities)
on the conversion or exchange of such Convertible Securities.
(4) For the purpose of the adjustment required under
this Section 4.C, if the Company issues or sells, or is deemed by the
express provisions of this subsection to have issued or sold, any
rights or options for the purchase of Convertible Securities and if
the Effective Price of the Additional Shares of Common Stock
underlying such Convertible Securities is less than the Purchase Price
then in effect, then in each such case the Company shall be deemed to
have issued at the time of the issuance of such rights or options the
maximum number of Additional Shares of Common Stock issuable upon
conversion or exchange of the total amount of Convertible Securities
covered by such rights or options and to have received as
consideration for the issuance of such Additional Shares of Common
Stock an amount equal to the amount of consideration, if any, received
by the Company for the issuance of such rights or options, plus the
minimum amounts of consideration, if any, payable to the Company upon
the exercise of such rights or options and plus the minimum amount of
consideration, if any, payable to the Company (other than by
cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion or exchange of such
Convertible Securities. No further adjustment of the Purchase Price,
adjusted upon the issuance of such rights or options, shall be made as
a result of the actual issuance of the Convertible Securities upon the
exercise of such rights or options or upon the actual issuance of
Additional Shares of Common Stock upon the conversion or exchange of
such Convertible Securities. The provisions of paragraph (3) above for
the readjustment of the Purchase Price upon the expiration of rights
or options or the rights of conversion or exchange of Convertible
Securities shall apply mutatis mutandis to the rights, options and
Convertible Securities referred to in this paragraph (4).
-6-
(5) "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued by the Company on or after the
Original Issuance Date, whether or not subsequently reacquired or
retired by the Company other than (i) shares of Common Stock issuable
upon exercise of the Warrants, (ii) shares of Common Stock issuable
upon exercise of warrants and options to purchase Common Stock issued
and outstanding as of the Original Issuance Date, (iii) shares of
Common Stock issued to non-affiliated third parties in connection with
any bona fide mergers, acquisitions, business combinations, strategic
ventures and product and intellectual property acquisitions, (iv)
shares of Common Stock issued pursuant to the exercise of stock
options granted under Company stock option plans, (v) shares of Common
Stock issued as dividends and/or interest payments in lieu of cash
payments, and (vi) shares of Common Stock issued in connection with
public offerings of the Company's securities and private placements
conducted through the Placement Agent and/or its affiliates
(including, but not limited to, upon exercise of placement agent
warrants and warrants issued to investors). The "Effective Price" of
Additional Shares of Common Stock shall mean the quotient determined
by dividing the total number of Additional Shares of Common Stock
issued or sold, or deemed to have been issued or sold by the Company
under this Section 4.C, into the aggregate consideration received, or
deemed to have been received, by the Company for such issue under this
Section 4.C, for such Additional Shares of Common Stock. "Other
Securities" with respect to an issue or sale of Additional Shares of
Common Stock shall mean Convertible Securities; "the number of shares
of Common Stock underlying Other Securities" on a particular date
shall mean the number of shares of Common Stock issuable upon the
exercise, conversion or exchange, as the case may be, of such Other
Securities at the close of business on such date.
(6) Other than a reduction pursuant to its applicable
anti-dilution provisions, any reduction in the conversion price of any
Convertible Security, whether outstanding on the Original Issuance
Date or thereafter, or the subscription price of any option, warrant
or right to purchase Common Stock or any Convertible Security (whether
such option, warrant or right is outstanding on the Original Issuance
Date or thereafter), to an Effective Price less than the Fair Market
Value or the then Purchase Price shall be deemed to be an issuance of
such Convertible Security and the issuance of all such options,
warrants or subscription rights, and the provisions of
Sections 4.C.(3), (4) and (5) shall apply thereto mutatis mutandis.
(7) In case any shares of stock or other securities,
other than Common Stock, shall at the time be receivable upon the
exercise of this Warrant, and in case any additional shares of such
stock or any additional such securities (or any stock or other
securities convertible into or exchangeable for any such stock or
securities) shall be issued or sold for a consideration per share such
as to dilute the purchase rights evidenced by this Warrant, then and
in each such case the Purchase Price shall forthwith be adjusted,
substantially in the manner provided for above in this Section 4.C, so
as to protect the Holder of this Warrant against the effect of such
dilution.
(8) In case the Company shall take a record of the
holders of shares of its stock of any class for the purpose of
entitling them (a) to receive a dividend or a distribution payable in
Common Stock or in Convertible Securities, or (b) to subscribe for,
purchase or otherwise acquire Common Stock or Convertible Securities,
then such record date shall be deemed to be the date of the issue or
sale of the Additional Shares of Common Stock issued or sold or deemed
to have been issued or sold upon the declaration of such dividend or
-7-
the making of such other distribution, or the date of the granting of
such rights of subscription, purchase or other acquisition, as the
case may be.
(9) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or decrease
of at least one cent ($0.01) in such price; provided, however, that
any adjustments which by reason of this Section 4 are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All calculations
under this Section 4 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
D. Adjustment for Certain Dividends and Distributions. If
--------------------------------------------------
the Company at any time or from time to time makes, or fixes a record
date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares
of Common Stock, then and in each such event:
(1) the Purchase Price then in effect shall be
decreased as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by
multiplying the Purchase Price then in effect by a fraction (A) the
numerator of which is the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date, and (B) the denominator
of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the
close of business on such record date as the case may be, plus the
number of shares of Common Stock issuable in payment of such dividend
or distribution; provided, however, that if such record date is fixed
and such dividend is not fully paid or if such distribution is not
fully made on the date fixed therefor, the Purchase Price shall be
recomputed accordingly as of the close of business on such record
date, and thereafter the Purchase Price shall be adjusted pursuant to
this Section 4.D as of the time of actual payment of such dividends or
distributions; and
(2) the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be increased, as of
the time of such issuance or, in the event such record date is fixed,
as of the close of business on such record date, in inverse proportion
to the decrease in the Purchase Price.
E. Stock Split and Reverse Stock Split. If the Company at
-----------------------------------
any time or from time to time effects a stock split or subdivision of
the outstanding Common Stock, the Purchase Price then in effect
immediately before that stock split or subdivision shall be
proportionately decreased and the number of shares of Common Stock
theretofore receivable upon the exercise of this Warrant shall be
proportionately increased. If the Company at any time or from time to
time effects a reverse stock split or combines the outstanding shares
of Common Stock into a smaller number of shares, the Purchase Price
then in effect immediately before that reverse stock split or
combination shall be proportionately increased and the number of
shares of Common Stock theretofore receivable upon the exercise of
this Warrant shall be proportionately decreased. Each adjustment under
this Section 4.E shall become effective at the close of business on
the date the stock split, subdivision, reverse stock split or
combination becomes effective.
-8-
F. Certificate as to Adjustments. Upon the occurrence of
-----------------------------
each adjustment or readjustment of the Conversion Price pursuant to
this Section 4, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of a Warrant a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, upon the
written request at any time of any holder of a Warrant, furnish or
cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) Purchase Price at the
time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received
upon the exercise of the Warrant.
5. Notices of Record Date. In case:
----------------------
A. the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon
the exercise of the Warrants) for the purpose of entitling them to
receive any dividend or other distribution, or any right to subscribe
for or purchase any shares of stock of any class or any other
securities, or to receive any other right, or
B. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation, or
C. of any voluntary dissolution, liquidation or winding-
up of the Company, then, and in each such case, the Company will mail
or cause to be mailed to each holder of a Warrant at the time outstanding
a notice specifying, as the case may be, (a) the date on which a record
is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or
right, or (b) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up is expected to take place, and the time, if any is to be
fixed, as of which the holders of record of Common Stock (or such
stock or securities at the time receivable upon the exercise of the
Warrants) shall be entitled to exchange their shares of Common Stock
(or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up, such
notice shall be mailed at least ten (10) days prior to the date
therein specified.
6. Loss or Mutilation. Upon receipt by the Company of evidence
------------------
satisfactory to it (in the exercise of reasonable discretion) of the
ownership of and the loss, theft, destruction or mutilation of any
Warrant and (in the case of loss, theft or destruction) of indemnity
satisfactory to it (in the exercise of reasonable discretion), and (in
the case of mutilation) upon surrender and cancellation thereof, the
Company will execute and deliver in lieu thereof a new Warrant of like
tenor.
7. Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available for issue upon the exercise of Warrants
such number of its authorized but unissued shares of Common Stock as
will be sufficient to permit the exercise in full of all outstanding
-9-
Warrants. All of the shares of Commons Stock issuable upon the
exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Purchase Price therefor, be fully paid and
nonassessable, and free from all preemptive rights, rights of first
refusal or first offer, taxes, liens and charges of whatever nature,
with respect to the issuance thereof.
8. Registration Rights Agreement. The Holder of this Warrant
-----------------------------
is entitled to have the shares of Common Stock purchased in the
Offering and the Warrant Shares issuable upon exercise of this Warrant
registered for resale under the 1933 Act, pursuant to and in
accordance with the Registration Rights Agreement dated as of the date
hereof by and between the Holder and the Company.
9. Notices. All notices and other communications from the
-------
Company to the Holder of this Warrant shall be mailed by first class,
registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the Holder.
10. Change; Modifications; Waiver. No terms of this Warrant may
-----------------------------
be amended, waived or modified except by the express written consent
of the Company and the holders of not less than 50.1% of the then
outstanding Warrants.
11. Headings. The headings in this Warrant are for purposes of
--------
convenience in reference only, and shall not be deemed to constitute a
part hereof.
12. Governing Law, Etc. This Agreement shall be governed by and
-------------------
construed in accordance with the internal laws of the State of New
York without regard to the conflicts of laws principles thereof. The
parties hereto hereby irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to or under this
Agreement, shall be brought solely in a federal or state court located
in the City, County and State of New York. By its execution hereof,
the parties hereby covenant and irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City,
County and State of New York and agree that any process in any such
action may be served upon any of them personally, or by certified mail
or registered mail upon them or their agent, return receipt requested,
with the same full force and effect as if personally served upon them
in New York City. The parties hereto waive any claim that any such
jurisdiction is not a convenient forum for any such suit or proceeding
and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party
hereto of all of its reasonable legal fees and expenses.
13. Redemption of Warrants.
----------------------
A. On not less than ten (10) days prior written notice
(the "Redemption Notice"), to the Holder, the Warrants may be
redeemed, at the option of the Company, at a redemption price of $0.01
per Warrant (the "Redemption Price"), provided that (i) the Market
Price (as defined in the SPA) for a share of Common Stock equals or
exceeds (a) three hundred (300%) percent of the then current Purchase
Price if the Redemption Date (as defined below) is a date within the
period commencing on the Original Issuance Date and terminating on the
date twelve (12) months following such date (the "1 Year Anniversary
Date"), and (b) two hundred twenty-five (225%) percent of the Purchase
Price if the Redemption Date is a date within the period commencing on
-10-
day immediately following the 1 Year Anniversary Date and terminating
on the Expiration Date for ten (10) consecutive Trading Days (as
defined in the SPA) ending on the 2nd Trading Day prior to the date of
the Redemption Notice and (ii) if the Redemption Date is during the
period commencing on the Original Issuance Date and terminating on the
date two (2) years thereafter, a registration statement covering the
Warrant Shares filed under the 1933 Act is declared effective by the
Commission and remains effective on the date fixed for redemption of
the Warrants (the "Redemption Date").
B. The Redemption Notice shall specify (i) the Redemption
Price, (ii) the Redemption Date, (iii) the place where the Warrant
certificates shall be delivered and the redemption price paid, and
(iv) that the right to exercise this Warrant shall terminate at
5:00 p.m. (New York time) on the business day immediately preceding
the Redemption Date.
C. Any right to exercise a Warrant shall terminate at
5:00 p.m. (New York time) on the business day immediately preceding
the Redemption Date. On and after the Redemption Date, the holder of
this Warrant shall have no further rights except to receive, upon
surrender of this Warrant, the Redemption Price.
D. From and after the Redemption Date, the Company shall,
at the place specified in the Redemption Notice, upon presentation and
surrender to the Company by or on behalf of the holder thereof the
warrant certificates evidencing this Warrant being redeemed, deliver,
or cause to be delivered to or upon the written order of such holder,
a sum in cash equal to the Redemption Price of this Warrant. From and
after the Redemption Date, this Warrant shall expire and become void
and all rights hereunder and under the warrant certificates, except
the right to receive payment of the Redemption Price, shall cease.
14. Counterparts. This Agreement may be signed in
-------------
counterparts.
-11-
WARRANT SIGNATURE PAGE
----------------------
Dated:_________________________
INYX, INC.
By:________________________________
Name:
Title:
-12-
EXHIBIT A
SUBSCRIPTION FORM
-----------------
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant and purchases _______ of the number of shares
of Common Stock of INYX, Inc., purchasable with this Warrant, and
herewith makes payment therefor (either in cash or pursuant to the
cashless exercise provisions set forth in Section 1A of the Warrant),
all at the price and on the terms and conditions specified in this
Warrant.
Dated:_________________________
_________________________________
(Signature of Registered Owner
_________________________________
(Street Address)
_________________________________
(City / State / Zip Code)
-13-
EXHIBIT B
FORM OF ASSIGNMENT
------------------
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named
below all of the rights of the undersigned under the within Warrant,
with respect to the number of shares of Common Stock set forth below:
Name of Assignee Address Number of Shares
---------------- ------- ----------------
and does hereby irrevocably constitute and appoint
__________________________ Attorney to make such transfer on the books
of INYX, Inc., maintained for the purpose, with full power of
substitution in the premises.
Dated:___________________
_________________________________
(Signature)
_________________________________
(Witness)
The undersigned Assignee of the Warrant hereby makes to INYX,
Inc., as of the date hereof, with respect to the Assignee, all of the
representations and warranties made by the Holder, and the undersigned
Assignee agrees to be bound by all the terms and conditions of the
Warrant and the INYX, Inc. Registration Rights Agreement, dated as of
August 2, 2004, by and between INYX, Inc. and the Holder.
Dated:__________________
_________________________________
(Signature)
