PLASTINUM POLYMER TECHNOLOGIES CORP. WARRANT
January
19, 2010
THIS
WARRANT, AND ALL SHARES OF STOCK ISSUABLE UNDER THIS WARRANT, HAVE BEEN AND WILL
BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). SUCH
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE
STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
This
Warrant is issued pursuant to the Securities Purchase Agreement dated of even
date herewith between Plastinum Polymer Technologies Corp., a Delaware
corporation (the “Company”), and
Xxxxxxx xxx Xxxxxxxxx, a natural person (the “Securities Purchase
Agreement”). This Warrant is entitled to certain registration
rights pursuant to Section 4 of the Securities Purchase
Agreement. The number of shares issuable upon exercise of this
Warrant shall be subject to adjustment in accordance with the terms
hereof.
THIS
CERTIFIES THAT, for value received, XXXXXXX XXX XXXXXXXXX, a
natural person (the "Investor", “Lender” or the “Holder”), or his
permitted assigns is entitled, subject to the terms and conditions of this
Warrant, at any time following the Effective Date and before 5:30 P.M. New York
City time on the Expiration Date, to purchase from the Company, 3,620,000 shares of Common
Stock (such shares and all other shares issued or issuable pursuant to this
Warrant referred to hereinafter as "Warrant Stock"). The
initial "Purchase
Price" per share shall be equal to $0.20 for an aggregate
Purchase Price for all Warrant Stock equal to $724,000.
1. DEFINITIONS: As used in this
Warrant, the following terms shall have the following respective
meanings:
“Affiliate” when used
with respect to any Person, shall mean (a) any other Person which, directly
or indirectly, controls or is controlled by or is under common control with such
Person, and (b) any executive officer or director of such Person and any
executive officer, director or general partner of the other Person which
controls such Person. For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlling", "controlled by"
and "under common control with"), with respect to any Person, shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
“Common Stock” shall
mean the common stock, $.01 par value per share, of the Company.
“Effective Date" shall
mean the date first written above.
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"Expiration Date"
shall mean the date that is the three (3) year anniversary of the Effective
Date.
"Fair Market Value" of
a share of Warrant Stock as of a particular date shall mean:
(a) If
traded on a securities exchange or a NASDAQ Market, the Fair Market Value shall
be deemed to be the average of the closing price of the Warrant Stock on such
exchange or market over the five (5) trading days ending on the day immediately
prior to the applicable date of valuation;
(b) If
actively traded over-the-counter, the Fair Market Value shall be deemed to be
the average of the closing bid prices over the five (5) trading days ending on
the day immediately prior to the applicable date of valuation; and
(c) If
there is no active public market, the Fair Market Value shall be the value
thereof, as agreed upon by the Company and the Holder; provided, however, that if the
Company and the Holder cannot agree on such value, such value shall be
determined by an independent valuation firm experienced in valuing businesses
such as the Company and jointly selected in good faith by the Company and the
Holder. Fees and expenses of the valuation firms shall be paid solely by the
Company.
"Holder" shall mean
the Investor, his successors or assigns.
"Person" shall mean
any individual, corporation, partnership, limited liability company, trust or
other entity or organization, including any governmental authority or political
subdivision thereof.
"Registered Holder"
shall mean any Holder in whose name this Warrant is registered upon the books
and records maintained by the Company.
"SEC" shall mean the
United States Securities and Exchange Commission.
"Warrant" shall mean
this Warrant and any warrant delivered in substitution or exchange therefor as
provided herein.
2. EXERCISE
OF WARRANT.
2.1 Payment. Subject
to compliance with the terms and conditions of this Warrant and applicable
securities laws, this Warrant may be exercised, in whole or in part at any time
or from time to time, from and after the Effective Date and on or before the
Expiration Date by delivery (including, without limitation, delivery by
facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"),
duly executed by the Holder, to the Company at its then principal office, and as
soon as practicable after such date, surrendering:
(a) this
Warrant at the principal office of the Company, and
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(b) payment
in cash, by check or by wire transfer of an amount equal to the product obtained
by multiplying the number of shares of Warrant Stock being purchased upon such
exercise by the then effective Purchase Price (the "Exercise
Amount").
2.2 Net Issue
Exercise. In lieu of the payment methods set forth in Section
2.1(b) above, the Holder may elect to exchange all or some of the Warrant for
shares of Warrant Stock equal to the value of the amount of the Warrant being
exchanged on the date of exchange. If the Holder elects to exchange this Warrant
as provided in this Section 2.2, the Holder shall tender to the Company the
Warrant for the amount being exchanged, along with written notice of the
Holder's election to exchange some or all of the Warrant, and the Company shall
issue to the Holder the number of shares of the Warrant Stock computed using the
following formula:
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X =
Y
(A-B)
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A
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Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock (as adjusted to the date of such
calculation).
All
references herein to an "exercise" of the Warrant shall include an exchange
pursuant to this Section 2.2.
2.3 "Easy Sale"
Exercise In lieu of the payment methods set forth in Section
2.1(b) above, when permitted by law and applicable regulations (including
exchange, NASDAQ and Financial Industry Regulatory Authority (“FINRA”) rules and
including that all shares so issued will be deemed to be fully paid,
non-assessable and properly listed or admitted for trading), the Holder may pay
the Purchase Price through a "same day sale" commitment from the Holder (and if
applicable a broker-dealer that is a member of FINRA (a “FINRA Dealer”)),
whereby the Holder irrevocably elects to exercise this Warrant and to sell a
portion of the shares so purchased to pay for the Purchase Price and the Holder
(or, if applicable, the FINRA Dealer) commits upon sale (or, in the case of the
FINRA Dealer, upon receipt) of such shares to forward the Purchase Price
directly to the Company.
2.4 Stock Certificates;
Fractional Shares. As soon as practicable on or after any date
of exercise of this Warrant pursuant to this Section 2, the Company shall issue
and deliver to the Person or Persons entitled to receive the same a certificate
or certificates for the number of whole shares of Warrant Stock issuable upon
such exercise, together with cash in lieu of any fraction of a share equal to
such fraction of the current Fair Market Value of one whole share of Warrant
Stock as of the date of exercise of this Warrant. No fractional shares or scrip
representing fractional shares shall be issued upon an exercise of this
Warrant.
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2.5 Partial Exercise; Effective
Date of Exercise. In case of any partial exercise of this
Warrant, the Company shall cancel this Warrant upon surrender hereof and shall
execute and deliver a new Warrant of like tenor and date for the balance of the
shares of Warrant Stock purchasable hereunder. This 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. The Person entitled to receive the
shares of Warrant Stock issuable upon exercise of this Warrant shall be treated
for all purposes as the holder of record of such shares as of the close of
business on the date the Holder is deemed to have exercised this
Warrant.
2.6 Purchase Price
Adjustment.
(a) If
the Company shall effect a subdivision of the outstanding Common Stock, the
Purchase Price then in effect immediately before such subdivision shall be
proportionately decreased. If the Company shall combine the
outstanding shares of Common Stock, the Purchase Price then in effect
immediately before the combination shall be proportionately
increased. If the Company shall make or issue a dividend or other
distribution payable in securities, then and in each such event provision shall
be made so that the holder of this Warrant shall receive upon exercise hereof,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities that the holder of this Warrant would have received had
this Warrant been exercised for Common Stock on the date of such event and had
such holder thereafter during the period from the date of such event to and
including the date of exercise of this Warrant retained such securities
receivable by such holder as aforesaid during such period, giving effect to all
adjustments called for during such period under this paragraph. If
the Company shall reclassify its Common Stock (including any reclassification in
connection with a consolidation or merger in which the Company is the surviving
corporation), then and in each such event provision shall be made so that such
holder shall receive upon exercise hereof the amount of such reclassified Common
Stock that such holder would have received had this Warrant been exercised for
Common Stock immediately prior to such reclassification and had such holder
thereafter, during the period from the date of such event to and including the
date of exercise of this Warrant, retained such reclassified Common Stock,
giving effect to all adjustments called for during such period under this
paragraph with respect to the rights of the holder of this Warrant.
(b) Whenever
the Purchase Price shall be adjusted as provided in this Section 2.6, the
Company shall forthwith provide notice of such adjustment to the holder of this
Warrant together with a statement, certified by the chief financial officer of
the Company, showing in detail the facts requiring such adjustment and the
Purchase Price that shall be in effect after such
adjustment. Notwithstanding the foregoing, no adjustment in the
Purchase Price shall be required unless such adjustment would require a change
of at least 1% in such Purchase Price; provided, however, that any
adjustments which by reason of this paragraph (b) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment.
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(c) In
case of any consolidation or merger of the Company with or into another
corporation or the conveyance of all or substantially all of the assets of the
Company to another corporation, this Warrant shall thereafter be exercisable (to
the extent such exercise is permitted hereunder) into the number of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock of the Company deliverable upon exercise of this Warrant would
have been entitled upon such consolidation, merger or conveyance; and, in any
such case, appropriate adjustment shall be made in the application of the
provisions herein set forth with respect to the rights and interest thereafter
of the holder of this Warrant, to the end that the provisions set forth herein
shall be thereafter applicable, as nearly as reasonably may be, in relation to
any shares of stock or other property thereafter deliverable upon the exercise
of the this Warrant.
3. VALID ISSUANCE;
TAXES. All shares of Warrant Stock issued upon the exercise of
this Warrant shall be validly issued, fully paid and non-assessable; provided
that the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for shares of Warrant Stock in any
name other than that of the Registered Holder of this Warrant, and in such case
the Company shall not be required to issue or deliver any stock certificate or
security until such tax or other charge has been paid, or it has been
established to the Company's reasonable satisfaction that no tax or other charge
is due.
4. LOSS OR MUTILATION. Upon
receipt of evidence reasonably satisfactory to the Company of the ownership of
and the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to it, and (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Company shall execute and deliver in lieu
thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated
Warrant.
5. RESERVATION OF WARRANT STOCK.
The Company hereby covenants that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant such number of shares of
Warrant Stock, Common Stock or other shares of capital stock of the Company as
are from time to time issuable upon exercise of this Warrant and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation to
provide sufficient reserves of shares of Warrant Stock issuable upon exercise of
this Warrant. All such shares shall be duly authorized, and when issued upon
such exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except
encumbrances or restrictions arising under federal or state securities laws.
Issuance of this Warrant shall constitute full authority to the Company's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Warrant Stock upon
the exercise of this Warrant.
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6. RESTRICTIONS ON TRANSFER. The
Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the SEC under the Act covering the disposition or sale of
this Warrant or the Warrant Stock issued or issuable upon exercise hereof, as
the case may be, and registration or qualification under applicable state
securities laws, such Holder will not sell, transfer, pledge, or hypothecate any
portion or all of this Warrant or the Warrant Stock, as the case may be, unless
either (a) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that such registration is
not required in connection with such disposition or (b) the sale of such
securities is made pursuant to Rule 144 under the Act.
7. NOTICE. Any notices
required or permitted to be given under the terms of this Warrant shall be in
writing and shall be deemed sufficient upon delivery, when delivered personally
or by overnight courier, in each case addressed to a party. The addresses
for such communications shall be:
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If
to the Holder:
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Xxxxxxx
xxx Xxxxxxxxx
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00
Xxxxx xx Xxxxxx
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Xxxxxx
0000
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Xxxxxxxxxxx
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If
to the Company:
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00000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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With
a copy to (which shall not constitute notice):
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Xxxxxxxxx
Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
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0000
XXX Xxxxx
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Xxxxxxxxx,
Xxx Xxxx 00000
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Attn: Xxxx
X. Xxxxxx, Esq.
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8. HEADINGS; SECTION
REFERENCE. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof. All Section references herein are references, to Sections of
this Warrant unless specified otherwise.
9. LAW GOVERNING.
This Warant and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law. Each of the parties hereto submits to
the personal jurisdiction of and each agrees that all proceedings relating
hereto shall be brought in federal or state courts located within the State of
New York. In any action, lawsuit or proceeding brought to enforce or
interpret the provisions of this Warrant and/or arising out of or relating to
any dispute between the parties, the prevailing party with respect to each
specific issue in a matter shall be entitled to recover all of his or its costs
and expenses relating to such issue (including without limitation, reasonable
attorney’s fees and disbursements) in addition to any other relief to which such
party may be entitled..
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10. NO IMPAIRMENT. The Company
will not, by amendment of its Certificate of Incorporation or bylaws, or through
reorganization, consolidation, merger, dissolution, issue or sale of securities,
sale of assets 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 action as may be necessary or appropriate in order to protect
the rights of the Registered Holder of this Warrant against impairment. Without
limiting the generality of the foregoing, the Company: (a) will not increase the
par value of any shares of stock issuable upon the exercise of this Warrant
above the amount payable therefor upon such exercise and (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Warrant Stock upon
exercise of this Warrant.
11. SEVERABILITY. If any term,
provision, covenant or restriction of this Warrant is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Warrant shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
12. COUNTERPARTS. For the
convenience of the parties, any number of counterparts of this Warrant may be
executed by the parties hereto and each such executed counterpart shall be, and
shall be deemed to be, an original instrument.
13. NO INCONSISTENT AGREEMENTS.
The Company will not on or after the date of this Warrant enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holder or otherwise conflicts with the provisions
hereof.
14. SATURDAYS, SUNDAYS AND
HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or legal
holiday, the Expiration Date shall automatically be extended until 5:30 P.M. the
next business day.
15. FACSIMILE SIGNATURE. In
the event that any signature is delivered by facsimile transmission, PDF,
electronic signature or other similar electronic means, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such signature
page were an original thereof.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the
undersigned duly authorized representative of the Company has executed this
Warrant as of the day and date first written above.
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By:
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/s/ Jacques Mot
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Name:
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Jacques
Mot
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Title:
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President
and Chief Executive Officer
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EXHIBIT
1
NOTICE
OF EXERCISE
(To
be executed upon exercise of Warrant)
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate of Plastinum Polymer Technologies
Corp. for ___ shares of Warrant Stock:
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1.
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Tenders
herewith payment of the exercise price in full in the form of cash or a
certified or official bank check in same-day funds in the amount of
$_______ for __________ such
securities.
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2.
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Elects
the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and
accordingly requests delivery of a net of _________ of such securities,
according to the following
calculation:
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X = Y
(A-B)
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(
)= ( )
[( ) -
( )]
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A
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(_______)
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Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of the Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock.
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3.
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Elects
the Easy Sale Exercise option pursuant to Section 2.3 of the Warrant, and
accordingly requests delivery of a net of ________ of such securities to
the brokerage firm identified below and attaches the agreement of said
firm to pay to the Company out of the proceeds of sale the purchase price
of the Warrant Shares.
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Unless
Easy Sale Exercise is elected above, in which case the Warrant Shares shall be
issued to the Warrant Holder’s account at said brokerage firm, please issue a
certificate or certificates for such securities in the name of, and pay any cash
for any fractional share to (please print name, address and social security
number):
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Name:
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Address:
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Signature:
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Date:
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Note: The
above signature should correspond exactly with the name on the first page of
this Warrant Certificate or with the name of the assignee appearing in the
assignment form below.
If said
number of shares shall not be all the shares purchasable under the within
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the shares purchasable thereunder
rounded up to the next higher whole number of shares.
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