Second Amendment Dated as of January 17, 2008 to Warrant Agreement between Stratus Services Group, Inc. and American Stock Transfer & Trust Company Dated as of July 14, 2004
Second
Amendment
Dated
as
of January 17, 2008
to
between
Stratus
Services Group, Inc.
and
American
Stock Transfer & Trust Company
Dated
as
of July 14, 2004
This
Second Amendment dated as of January 17, 2008 (the “Amendment”) to Warrant
Agreement dated as of July 14, 2004 (the “Warrant Agreement”) between Stratus
Services Group, Inc., a Delaware corporation (the “Company”) and American Stock
Transfer and Trust Company, a New York corporation (the “Warrant
Agent”).
WHEREAS,
the Company and the Warrant Agent have previously entered into the Warrant
Agreement; and
WHEREAS,
the Company and the Warrant Agent have previously entered into First Amendment
Dated as of January 14, 2007 to Warrant Agreement; and
WHEREAS,
the Company and the Warrant Agent wish to enter into this Second Amendment
to
amend certain terms of the Warrant Agreement to extend the Expiration Date
of
the Warrant;
NOW,
THEREFORE, in consideration of the premises and mutual agreements herein set
forth, the parties hereto agree as follows:
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1.
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Extension
of
Expiration Date. Section 2(a) of the Warrant Agreement
is hereby amended and restated to read in its entirety as
follows:
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“The
Warrant Certificates (and the Form of Election to Purchase and the Form of
Assignment to be printed on the reverse thereof) shall be in registered form
only and shall be substantially of the tenor and purport recited in Exhibit
A
hereto, and may have such letters, numbers or other marks of identification
or
designation and such legends, summaries or endorsements printed, lithographed
or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with
any
law, or with any rule or regulation made pursuant thereto, or with any rule
or
regulation of any stock exchange on which the Common Stock or the Warrants
may
be listed or any automated quotation system, or to conform to
usage. Each Warrant Certificate shall entitle the registered holder
thereof, subject to the provisions of this Agreement and of the Warrant
Certificate, to purchase, on or after July 14, 2005 and on or before the close
of business on January 17, 2009 (the "Expiration Date"), one fully paid and
non-assessable share of Common Stock for each Warrant evidenced by such Warrant
Certificate for $0.50. The exercise price of the Warrants (the
"Exercise Price") is subject to adjustments as provided in Section 6
hereof. Each Warrant Certificate shall be dated the date on which the
Warrant Agent receives valid issuance instructions from the Company or a
transferring holder of a Warrant Certificate or, if such instructions specify
another date, such other date.”
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2.
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Amendment
of Warrant
Certificate. Exhibit A to the Warrant Agreement is
hereby restated and replaced in its entirety by Exhibit A to the
Amendment.
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3.
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Descriptive
Headings. The descriptive headings of the sections of
this Amendment are inserted for convenience only and shall not control
or
affect the meaning of any of the provisions
hereof.
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4.
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Counterparts. This
Amendment may be executed in any number of counterparts, each of
which
shall be an original, but such counterparts shall together constitute
one
and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
STRATUS
SERVICES GROUP,
INC.
By:
/s/ Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Executive Vice President &
CFO
AMERICAN
STOCK TRANSFER &
TRUST
COMPANY
By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Vice President
2
Exhibit
A
VOID
AFTER 5 P.M. EASTERN TIME ON January 14, 2009
WARRANTS
TO PURCHASE COMMON STOCK
__________
Warrants
W
-
Stratus Services Group, Inc.
CUSIP
__________
THIS
CERTIFIES THAT
or
registers assigns, is the registered holder of the number of Warrants
("Warrants") set forth above. Each Warrant, unless and until redeemed
by the Company as provided in the Warrant Agreement, hereinafter more fully
described (the " Warrant Agreement") entitles the holder thereof to purchase
from Stratus Services Group, Inc., a corporation incorporated under the laws
of
the State of Delaware ("Company"), subject to the terms and conditions set
forth
hereinafter and in the Warrant Agreement, at any time on or after July 14,
2005
and before the close of business on January 17, 2009 ("Expiration Date"), one
fully paid and non-assessable share of Common Stock, $0.04 par value, of the
Company ("Common Stock") upon presentation and surrender of this Warrant
Certificate, with the instructions for the registration and delivery of Common
Stock filled in, at the stock transfer office in New York, New York, of American
Stock Transfer & Trust Company, Warrant Agent of the Company ("Warrant
Agent") or of its successor warrant agent or, if there be no successor warrant
agent, at the corporate offices of the Company, and upon payment of the Exercise
Price (as defined in the Warrant Agreement) and any applicable taxes paid either
in cash, or by certified or official bank check, payable in lawful money of
the
United States of America to the order of the Company. Each Warrant
initially entitles the holder to purchase one share of Common Stock for $0.50
(subject to appropriate adjustments as provided in the Warrant
Agreement). The number and kind of securities or other property for
which the Warrants are exercisable are subject to adjustment in certain events,
such as mergers, splits, stock dividends, splits and the like, to prevent
dilution. The Company may redeem any or all outstanding and
unexercised warrants by giving not less than 30 days prior notice at any time
after the last reported sale price of the Common Stock on the principal exchange
on which it is traded has equaled or exceeded $1.33 per share (subject to
appropriate adjustments as provided in the Warrant Agreement) on each of twenty
(20) consecutive trading days subsequent to July 14, 2005. The
Redemption Price is $0.08 (subject to appropriate adjustments as provided in
the
Warrant Agreement) per Warrant. All Warrants not theretofore
exercised will expire on the Expiration Date.
This
Warrant Certificate is subject to all of the terms, provisions and conditions
of
the Warrant Agreement, dated as of July 14, 2004, between the Company and the
Warrant Agent, to all of which terms, provisions and conditions the registered
holder of this Warrant Certificate consents by acceptance hereof. The
Warrant Agreement is incorporated herein by reference and made a part hereof
and
reference is made to the Warrant Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Warrant Agent,
the Company and the holders of the Warrant Certificates. Copies of
the Warrant Agreement are available for inspection at the stock transfer office
of the Warrant Agent or may be obtained upon written request addressed to the
Company at Stratus Services Group, Inc., 000 Xxxxxx xx xxx Xxxxxx, Xxxxx 0,
Xxxxxxxxxx, XX 00000, Attention: Chief Financial
Officer.
The
Company shall not be required upon the exercise of the Warrants evidenced by
this Warrant Certificate to issue fractions of Warrants, Common Stock or other
securities, but shall make adjustment therefore in cash on the basis of the
current market value of any fractional interest as provided in the Warrant
Agreement.
In
certain cases, the sale of securities by the Company upon exercise of Warrants
would violate the securities laws of the United States, certain states thereof
or other jurisdictions. The Company has agreed to use all
commercially reasonable efforts to cause a registration statement to continue
to
be effective during the term of the Warrants with respect to such sales under
the Securities Act of 1933, and to take such action under the laws of various
states as may be required to cause the sale of securities upon exercise to
be
lawful. However, the Company will not be required to honor the
exercise of Warrants if, in the opinion of the Board of Directors, upon advice
of counsel, the sale of securities upon such exercise would be
unlawful. In certain cases, the Company may, but is not required to,
purchase Warrants submitted for exercise for a cash price equal to the
difference between the market price of the securities obtainable upon such
exercise and the exercise price of such Warrants.
This
Warrant Certificate, with or without other Certificates, upon surrender to
the
Warrant Agent, any successor warrant agent or, in the absence of any successor
warrant agent, at the corporate offices of the Company, may be exchanged for
another Warrant Certificate or Certificates evidencing in the aggregate the
same
number of Warrants as the Warrant Certificate or Certificates so
surrendered. If the Warrants evidenced by this Warrant Certificate
shall be exercised in part, the holder hereof shall be entitled to receive
upon
surrender hereof another Warrant Certificate or Certificates evidencing the
number of Warrants not so exercised.
No
holder
of this Warrant Certificate, as such, shall be entitled to vote, receive
dividends or be deemed the holder of Common Stock or any other securities of
the
Company which may at any time be issuable on the exercise hereof for any purpose
whatever, nor shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder of this Warrant Certificate, as such, any
of
the rights of a stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting thereof
or give or withhold consent to any corporate action (whether upon any matter
submitted to stockholders at any meeting thereof, or give or withhold consent
to
any merger, recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value, consolidation,
conveyance or otherwise) or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Warrant Agreement) or to
receive dividends or subscription rights or otherwise until the Warrants
evidenced by this Warrant Certificate shall have been exercised and the Common
Stock purchasable upon the exercise thereof shall have become deliverable as
provided in the Warrant Agreement.
If
this
Warrant Certificate shall be surrendered for exercise within any period during
which the transfer books for the Company's Common Stock or other class of stock
purchasable upon the exercise of the Warrants evidenced by this Warrant
Certificate are closed for any purpose, the Company shall not be required to
make delivery of certificates for shares purchasable upon such transfer until
the date of the reopening of said transfer books.
Every
holder of this Warrant Certificate by accepting the same consents and agrees
with the Company, the Warrant Agent, and with every other holder of a Warrant
Certificate that:
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(a)
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this
Warrant Certificate is transferable on the registry books of the
Warrant
Agent only upon the terms and conditions set forth in the Warrant
Agreement, and
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(b)
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the
Company and the Warrant Agent may deem and treat the person in whose
name
this Warrant Certificate is registered as the absolute owner hereof
(notwithstanding any notation of ownership or other writing thereon
made
by anyone other than the Company or the Warrant Agent) for all purposes
whatever and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary. The Company shall not be
required to issue or deliver any certificate for shares of Common
Stock or
other securities upon the exercise of Warrants evidenced by this
Warrant
Certificate until any tax which may be payable in respect thereof
by the
holder of this Warrant Certificate pursuant to the Warrant Agreement
shall
have been paid, such tax being payable the holder of this Warrant
Certificate at the time of
surrender.
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This
Warrant Certificate shall not be valid or obligatory for any purpose until
it
shall have been countersigned by the Warrant Agent.
WITNESS
the facsimile signatures of the proper officers of the Company and its corporate
seal.
Dated: 01/17/08
ATTEST:
Stratus Services Group, Inc.
/s/
J. Xxxx Xxxxxxx
By: /s/
Xxxxxxx X.
Xxxxxxxx
Name:
J.
Xxxx
Xxxxxxx Name:
Xxxxxxx X. Xxxxxxxx
Title: Secretary Title:
Executive Vice President & CFO
Countersigned:
AMERICAN
STOCK TRANSFER
&
TRUST COMPANY
By: /s/
Xxxxxxx
Xxxxx
(Authorized
Officer)
Xxxxxxx
Xxxxx
Vice
President
