Exhibit 99.8
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NEITHER THESE WARRANTS NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THESE
WARRANTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
180,000 WARRANTS March 20, 2006
XXXXXX.XXX, INC.
WARRANTS
XXXxxx.xxx, Inc., a Delaware corporation ("CDK"), certifies that, for
value received, Emerging Markets Consulting, LLC ("EMC"), or registered assigns
(the "HOLDER"), is the owner of One Hundred Eighty Thousand (180,000) Warrants
of CDK (the "WARRANTS"). Each Warrant entitles the Holder to purchase from CDK
at any time prior to the Expiration Date (as defined below) one share of the
common stock of CDK (the "COMMON STOCK") for $0.85 per share (the "EXERCISE
PRICE"), on the terms and conditions hereinafter provided. The Exercise Price
and the number of shares of Common Stock purchasable upon exercise of each
Warrant are subject to adjustment as provided in this Certificate. The Warrants
have been issued as part compensation for services to be performed by EMC
pursuant to a Consulting Agreement between CDK and EMC dated as of March 20,
2006 (the "CONSULTING Agreement"). Certain capitalized terms used herein are
defined in the Consulting Agreement.
1. VESTING; EXPIRATION DATE; EXERCISE
1.1 Vesting. The Warrants shall vest and become exercisable at the
rate of 60,000 Warrants per month (and pro rata portion thereof) at the end of
each calendar month of the term of the Consulting Agreement, provided the
Consulting Agreement has not been terminated by the Company for Cause or by EMC
without Good Reason. In the event the Consulting Agreement is terminated by the
Company for Cause or by EMC without Good Reason, all Warrants not vested as of
the effective date of such termination shall expire and be of no further force
or effect.
1.2 Expiration Date. The Warrants shall expire on March 31, 2011 (the
"EXPIRATION DATE").
1.3 Manner of Exercise. The Warrants are exercisable by delivery to
CDK of the following (the "EXERCISE DOCUMENTS"): (a) this Certificate (b) a
written notice of election to exercise the Warrants; and (c) payment of the
Exercise Price in cash, by check or by "net" exercise as contemplated by Section
1.4 of this Certificate. Within three business days following receipt of
the foregoing, CDK shall execute and deliver to the Holder: (a) a certificate or
certificates representing the aggregate number of shares of Common Stock
purchased by the Holder, and (b) if less than all of the Warrants evidenced by
this Certificate are exercised, a new certificate evidencing the Warrants not so
exercised.
1.4 Net Exercise. In lieu of the payment methods set forth in Section
1.3 above, the Holder may elect to exchange all or some of the Warrant for the
number of shares of Common Stock computed using the following formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to
Holder.
Y = the number of shares of Common Stock purchasable under the
Warrants being exchanged (as adjusted to the date of such
calculation).
A = the Market Price on the date of receipt by CDK of the
exercise documents.
B = the Exercise Price of the Warrants being exchanged (as
adjusted in accordance with the terms of Section 2 hereof).
The "MARKET PRICE" on any trading day shall be deemed to be the
average of the last reported sale price of the Common Stock for the
five trading days immediately preceding such day, or, in the case no
such reported sales take place on any day, the last reported sale price
on the preceding trading day on which there was a last reported sales
price, as officially reported by the principal securities exchange in
which the shares of Common Stock are listed or admitted to trading or
by the Nasdaq Stock Market, or if the Common Stock is not listed or
admitted to trading on any national securities exchange or the Nasdaq
Stock Market, the last sale price, or if there is no last sale price,
the closing bid price, as furnished by the National Association of
Securities Dealers, Inc. (such as through the OTC Bulletin Board) or a
similar organization or if Nasdaq is no longer reporting such
information. If the Market Price cannot be determined pursuant to the
sentence above, the Market Price shall be determined in good faith
(using customary valuation methods) by the Board of Directors of CDK
based on the information best available to it, including recent
arms-length sales of Common Stock to unaffiliated persons.
1.5 Restriction on "Net" Exercise. Notwithstanding any other provision
of this Certificate, Holder shall not be permitted to effect a "net" exercise of
the Warrants if on the date of exercise the resale of the underlying shares by
Holder has been registered under the Securities Act of 1933, as amended,
pursuant to a registration statement which is then in effect, and on such date
the Holder shall be permitted to resell such shares pursuant to such
registration statement.
1.6 Warrant Exercise Limitation. Notwithstanding any other provision
of this Certificate, or the total number of shares of Common Stock otherwise
available for purchase by Holder hereunder, if as of the date of exercise CDK
has a class of securities registered under Section 12 of the Securities Exchange
Act of 1934, as amended, Holder may not exercise any Warrants under this
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Section 1 if immediately following such exercise Holder would beneficially own
5% or more of the outstanding Common Stock of CDK. For this purpose, a
representation of the Holder that following such exercise it would not
beneficially own 5% or more of the outstanding Common Stock of CDK shall be
conclusive and binding upon CDK.
2. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER AND KIND OF CONVERSION SHARES
2.1 In the event that CDK shall at any time hereafter (a) pay a
dividend in Common Stock or securities convertible into Common Stock; (b)
subdivide or split its outstanding Common Stock; (c) combine its outstanding
Common Stock into a smaller number of shares; then the number of shares to be
issued immediately after the occurrence of any such event shall be adjusted so
that the Holder thereafter may receive the number of shares of Common Stock it
would have owned immediately following such action if it had exercised the
Warrants immediately prior to such action and the Exercise Price shall be
adjusted to reflect such proportionate increases or decreases in the number of
shares.
2.2 In case of any reclassification of the outstanding shares of
Common Stock (other than a change covered by Section 2.1 hereof or a change
which solely affects the par value of such shares) or in the case of any merger
or consolidation or merger in which CDK is not the continuing corporation and
which results in any reclassification or capital reorganization of the
outstanding shares), the Holder shall have the right thereafter (until the
Expiration Date) to receive upon the exercise hereof, for the same aggregate
Exercise Price payable hereunder immediately prior to such event, the kind and
amount of shares of stock or other securities or property receivable upon such
reclassification, capital reorganization, merger or consolidation, by a Holder
of the number of shares of Common Stock obtainable upon the exercise of the
Warrants immediately prior to such event; and if any reclassification also
results in a change in shares covered by Section 2.1, then such adjustment shall
be made pursuant to both this Section 2.2 and Section 2.1 (without duplication).
The provisions of this Section 2.2 shall similarly apply to successive
reclassifications, capital reorganizations and mergers or consolidations, sales
or other transfers.
3. RESERVATION OF SHARES. CDK shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, such number
of shares of Common Stock as shall from time to time be issuable upon exercise
of the Warrants. If at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to permit the exercise of the Warrants, CDK
shall promptly seek such corporate action as may necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purpose.
4. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the
Exercise Price, or number or type of shares issuable upon exercise of these
Warrants, the Chief Financial Officer of CDK shall compute such adjustment in
accordance with the terms of these Warrants and prepare a certificate setting
forth such adjustment and showing in detail the facts upon which such adjustment
is based, including a statement of the adjusted Exercise Price. CDK shall
promptly send (by facsimile and by either first class mail, postage prepaid or
overnight delivery) a copy of each such certificate to the Holder.
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5. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to
CDK of the ownership of and the loss, theft, destruction or mutilation of this
Certificate, and of indemnity reasonably satisfactory to it, and (in the case of
mutilation) upon surrender and cancellation of these Warrants, CDK will execute
and deliver in lieu thereof a new Certificate of like tenor as the lost, stolen,
destroyed or mutilated Certificate.
6. REPRESENTATIONS AND WARRANTIES OF CDK. CDK hereby represents and
warrants to Holder that:
6.1 Due Authorization. All corporate action on the part of CDK, its
officers, directors and shareholders necessary for (a) the authorization,
execution and delivery of, and the performance of all obligations of CDK under,
these Warrants, and (b) the authorization, issuance, reservation for issuance
and delivery of all of the Common Stock issuable upon exercise of these
Warrants, has been duly taken. These Warrants constitute a valid and binding
obligation of CDK enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, moratorium,
reorganization and similar laws affecting creditors' rights generally and to
general equitable principles.
6.2 Organization. CDK is a corporation duly organized, validly
existing and in good standing under the laws of the State referenced in the
first paragraph of this Certificate and has all requisite corporate power to
own, lease and operate its property and to carry on its business as now being
conducted and as currently proposed to be conducted.
6.3 Valid Issuance of Stock. Any shares of Common Stock issued upon
exercise of these Warrants will be duly and validly issued, fully paid and
non-assessable.
6.4 Governmental Consents. All consents, approvals, orders,
authorizations or registrations, qualifications, declarations or filings with
any federal or state governmental authority on the part of CDK required in
connection with the consummation of the transactions contemplated herein have
been obtained.
7. REPRESENTATIONS AND WARRANTIES OF HOLDER. Holder hereby represents and
warrants to CDK that:
7.1 Holder is acquiring the Warrants for its own account, for
investment purposes only.
7.2 Holder understands that an investment in the Warrants involves a
high degree of risk, and Xxxxxx has the financial ability to bear the economic
risk of this investment in the Warrants, including a complete loss of such
investment. Holder has adequate means for providing for its current financial
needs and has no need for liquidity with respect to this investment.
7.3 Holder has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Warrants and in protecting its own interest in connection with this
transaction.
7.4 Holder understands that the Warrants have not been registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT") or under any
state securities laws. Holder is familiar
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with the provisions of the Securities Act and Rule 144 thereunder and
understands that the restrictions on transfer on the Warrants may result in
Holder being required to hold the Warrants for an indefinite period of time.
7.5 Holder agrees not to sell, transfer, assign, gift, create a
security interest in, or otherwise dispose of, with or without consideration
(collectively, "TRANSFER") any of the Warrants except pursuant to an effective
registration statement under the Securities Act or an exemption from
registration. As a further condition to any such Transfer, except in the event
that such Transfer is made pursuant to an effective registration statement under
the Securities Act, if in the reasonable opinion of counsel to CDK any Transfer
of the Warrants by the contemplated transferee thereof would not be exempt from
the registration and prospectus delivery requirements of the Securities Act, CDK
may require the contemplated transferee to furnish CDK with an investment letter
setting forth such information and agreements as may be reasonably requested by
CDK to ensure compliance by such transferee with the Securities Act.
8. NOTICES OF RECORD DATE.
In the event:
8.1 CDK shall take a record of the holders of its Common Stock (or
other stock or securities at the time receivable upon the exercise of these
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
8.2 of any consolidation or merger of CDK with or into another
corporation, any capital reorganization of CDK, any reclassification of the
capital stock of CDK, or any conveyance of all or substantially all of the
assets of CDK to another corporation in which holders of CDK's stock are to
receive stock, securities or property of another corporation; or
8.3 of any voluntary dissolution, liquidation or winding-up of CDK; or
8.4 of any redemption or conversion of all outstanding Common Stock;
then, and in each such case, CDK will mail or cause to be mailed to the Holder 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, or (b) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or conversion is 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 as at the time are
receivable upon the exercise of these 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. CDK
shall use all reasonable efforts to ensure such notice shall be delivered at
least 5 days prior to the date therein specified.
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9. REGISTRATION RIGHTS.
9.1 Definitions. For purposes of this Section 9, the following terms
shall have the meanings set forth below:
9.1.1 A "BLACKOUT EVENT" means any of the following: (a) the
possession by CDK of material information that is not ripe for disclosure in a
registration statement or prospectus, if the disclosure of such information in
the Registration Statement or the prospectus constituting a part thereof would
be materially detrimental to the business and affairs of CDK, as determined
reasonably and in good faith by the Board of Directors of CDK; or (b) any
material engagement or activity by CDK which would, in the reasonable and good
faith determination of the Board of Directors of CDK, be materially adversely
affected by disclosure in a registration statement or prospectus at such time.
9.1.2 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
9.1.3 "INCLUDED SHARES" shall mean any Registrable Shares included
in a Registration.
9.1.4 "REGISTRABLE SHARES" shall mean the shares of Common Stock
(or such stock or securities as at the time are receivable upon the exercise of
these Warrants) issuable upon exercise of the Warrants and any other Warrants
and or other securities issued to EMC in connection with performing investor
relations services for CDK, and shares or securities issued as a result of stock
split, stock dividend or reclassification of such shares.
9.1.5 "REGISTRATION" shall mean a registration of securities under
the Securities Act pursuant to Section 10.2 or 10.3 of this Agreement.
9.1.6 "REGISTRATION PERIOD" with respect to any Registration
Statement the period commencing the effective date of the Registration Statement
and ending upon withdrawal or termination of the Registration Statement.
9.1.7 "REGISTRATION STATEMENT" shall mean the registration
statement, as amended from time to time, filed with the SEC in connection with a
Registration.
9.1.8 "SEC" shall mean the Securities and Exchange Commission.
9.2 Piggyback Registration. If, on or prior to the one-year
anniversary of the original issuance of this Warrant, CDK shall determine to
register any Common Stock under the Securities Act for sale in connection with a
public offering of Common Stock (other than pursuant to an employee benefit plan
or a merger, acquisition or similar transaction), CDK will give written notice
thereof to Holder and will include in such Registration Statement any of the
Registrable Shares which Holder may request be included ("INCLUDED SHARES") by a
writing delivered to CDK within 15 days after the notice given by CDK to Holder;
provided, however, that if the offering is to be firmly underwritten, and the
representative of the underwriters of the offering refuse in writing to include
in the offering all of the shares of Common Stock requested by CDK and others,
the shares
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to be included shall be allocated first to CDK and any shareholder who initiated
such Registration and then among the others based on the respective number of
shares of Common Stock held by such persons. If CDK decides not to, and does
not, file a Registration Statement with respect to such Registration, or after
filing determines to withdraw the same before the effective date thereof, CDK
will promptly so inform Xxxxxx, and CDK will not be obligated to complete the
registration of the Included Shares included therein.
9.3 Certain Covenants. In connection with any Registration:
9.3.1 CDK shall take all lawful action such that the Registration
Statement, any amendment thereto and the prospectus forming a part thereof does
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading. Upon
becoming aware of the occurrence of any event or the discovery of any facts
during the Registration Period that make any statement of a material fact made
in the Registration Statement or the related prospectus untrue in any material
respect or which material fact is omitted from the Registration Statement or
related prospectus that requires the making of any changes in the Registration
Statement or related prospectus so that it will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading (taking into account any prior amendments or supplements), CDK shall
promptly notify Holder, and, as soon as reasonably practicable prepare (but in
no event more than five business days in the case of a supplement or seven
business days in the case of a post-effective amendment) and file with the SEC a
supplement or post-effective amendment to the Registration Statement or the
related prospectus or file any other required document so that, as thereafter
delivered to a purchaser of Shares from Holder, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. CDK shall use its reasonable best efforts
to keep the Registration Statement effective at all times during the period
continuing until the earliest of (i) the date that is nine months after the last
day of the calendar month following the month in which the Registration
Statement is declared effective, (ii) the date when the Holder may sell all
Registrable Securities under Rule 144 without volume or other restrictions or
limits or (iii) the date the Holder no longer owns any of the Registrable
Securities,
9.3.2 At least three business days prior to the filing with the
SEC of the Registration Statement (or any amendment thereto) or the prospectus
forming a part thereof (or any supplement thereto), CDK shall provide draft
copies thereof to Holder and shall consider incorporating into such documents
such comments as Holder (and its counsel) may propose to be incorporated
therein. Notwithstanding the foregoing, no prospectus supplement, the form of
which has previously been provided to Holder, need be delivered in draft form to
Holder.
9.3.3 CDK shall promptly notify Holder upon the occurrence of any
of the following events in respect of the Registration Statement or the
prospectus forming a part thereof: (i) the receipt of any request for additional
information from the SEC or any other federal or state governmental authority,
the response to which would require any amendments or supplements to the
Registration Statement or related prospectus; (ii) the issuance by the SEC or
any other federal or
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state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; or (iii) the receipt of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
9.3.4 CDK shall furnish to Holder with respect to the Included
Shares registered under the Registration Statement (and to each underwriter, if
any, of such Shares) such number of copies of prospectuses and such other
documents as Holder may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Included Shares by Holder
pursuant to the Registration Statement.
9.3.5 In connection with any registration pursuant to Section 9.2,
CDK shall file or cause to be filed such documents as are required to be filed
by CDK for normal Blue Sky clearance in states specified in writing by Holder;
provided, however, that CDK shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented.
9.3.6 CDK shall bear and pay all expenses incurred by it and
Holder (other than underwriting discounts, brokerage fees and commissions and
fees and expenses of more than one law firm) in connection with the registration
of the Shares pursuant to the Registration Statement.
9.3.7 As a condition to including Registrable Shares in a
Registration Statement, Holder must provide to CDK such information regarding
itself, the Registrable Shares held by it and the intended method of
distribution of such Shares as shall be required to effect the registration of
the Registrable Shares and, if the offering is being underwritten, Holder must
provide such powers of attorney, indemnities and other documents as may be
reasonably requested by the managing underwriter.
9.3.8 Following the effectiveness of the Registration Statement,
upon receipt from CDK of a notice that the Registration Statement contains an
untrue statement of material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, Holder will
immediately discontinue disposition of Included Shares pursuant to the
Registration Statement until CDK notifies Holder that it may resume sales of
Included Shares and, if necessary, provides to Holder copies of the supplemental
or amended prospectus.
9.4 Blackout Event. CDK shall not be obligated to file a
post-effective amendment or supplement to the Registration Statement or the
prospectus constituting a part thereof during the continuance of a Blackout
Event; provided, however, that no Blackout Event may be deemed to exist for more
than 20 days. Without the express written consent of Holder, if required to
permit the continued sale of Shares by Xxxxxx, a post-effective amendment or
supplement to Registration Statement or the prospectus constituting a part
thereof must be filed no later than the 21st day following commencement of a
Blackout Event.
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9.5 Rule 144. With a view to making available to Holder the benefits
of Rule 144, CDK agrees, during the period from April 1, 2007 until March 31,
2008, unless the shares issuable to the Holder may be sold pursuant to an
effective Registration Statement, to:
9.5.1 comply with the provisions of paragraph (c)(1) of Rule 144;
and
9.5.2 file with the SEC in a timely manner all reports and other
documents required to be filed by CDK pursuant to Section 13 or 15(d) under the
Exchange Act; and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of a Holder, make available other information as required by, and so
long as necessary to permit sales of its Shares pursuant to, Rule 144.
9.6 CDK Indemnification. CDK agrees to indemnify and hold harmless
Holder, and its officers, directors and agents, and each person, if any, who
controls Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by (i) any violation or alleged violation by CDK
of the Securities Act, Exchange Act, any state securities laws or any rule or
regulation promulgated under the Securities Act, Exchange Act or any state
securities laws, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Included Shares (as amended or supplemented if CDK shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or (iii)
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to CDK by Xxxxxx or on Xxxxxx's behalf
expressly for use therein.
9.7 Holder Indemnification. Holder agrees to indemnify and hold
harmless CDK, its officers, directors and agents and each person, if any, who
controls CDK within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from CDK to Holder, but only with respect to information furnished in writing by
Holder or on Xxxxxx's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Shares, or any amendment or supplement
thereto, or any preliminary prospectus.
9.8 Indemnification Procedures. In case any proceeding (including any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to this Section 9, such person (an
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party, and shall assume the
payment of all fees and expenses; provided that the failure of any Indemnified
Party so to notify the Indemnifying Party shall not relieve the Indemnifying
Party of its obligations hereunder except to the extent (and only to the extent
that) that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such
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counsel or (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties (including in the case of
Holder, all of its officers, directors and controlling persons) and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Indemnified Parties, the Indemnified Parties
shall designate such firm in writing to the Indemnifying Party. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with such consent, or if there be a final judgment for
the plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding.
9.9 Contribution. To the extent any indemnification by an Indemnifying
Party is prohibited or limited by law, the Indemnifying Party agrees to make the
maximum contribution with respect to any amounts for which, he, she or it would
otherwise be liable under this Section 9.6 to the fullest extent permitted by
law; provided, however, that (i) no contribution shall be made under
circumstances where a party would not have been liable for indemnification under
this Section 9.6 and (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning used in the Securities Act)
shall be entitled to contribution from any party who was not guilty of such
fraudulent misrepresentation.
10. NONTRANSFERABILITY. Holder may not sell or transfer any Warrants to any
person other than an affiliate of Holder without the prior written consent of
CDK. Any such purported transfer shall not be effective as between such
purported transferee and CDK.
11. SEVERABILITY. If any term, provision, covenant or restriction of these
Warrants is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of these Warrants shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
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12. NOTICES. All notices, requests, consents and other communications
required hereunder shall be in writing and shall be effective when delivered or,
if delivered by registered or certified mail, postage prepaid, return receipt
requested, shall be effective on the third day following deposit in United
States mail: to the Holder, at Emerging Markets Consulting, LLC, 000 Xxxxx Xxxxx
Xxxxxx, #X, Xxxxxxx, Xxxxxxx 00000; and if addressed to CDK, at XXXxxx.xxx,
Inc., 000 XX Xxxxxxx 00, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000, or such other
address as Holder or CDK may designate in writing.
13. NO RIGHTS AS SHAREHOLDER. The Holder shall have no rights as a
shareholder of CDK with respect to the shares issuable upon exercise of the
Warrants until the receipt by CDK of all of the Exercise Documents.
XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, Chief Executive Officer
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EXHIBIT "A"
NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE WARRANTS)
To: XXXxxx.xxx, Inc.
The undersigned hereby elects to purchase shares of Common Stock (the
"WARRANT SHARES") of XXXxxx.xxx, Inc. ("CDK"), pursuant to the terms of the
enclosed warrant certificate (the "CERTIFICATE"). The undersigned tenders
herewith payment of the exercise price pursuant to the terms of the Certificate.
The undersigned hereby represents and warrants to, and agrees with, CDK
as follows:
1. Holder is acquiring the Warrant Shares for its own account, for
investment purposes only.
2. Holder understands that an investment in the Warrant Shares
involves a high degree of risk, and Xxxxxx has the financial ability to bear the
economic risk of this investment in the Warrant Shares, including a complete
loss of such investment. Holder has adequate means for providing for its current
financial needs and has no need for liquidity with respect to this investment.
3. Holder has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Warrant Shares and in protecting its own interest in connection with this
transaction.
4. Holder understands that the Warrant Shares have not been
registered under the Securities Act or under any state securities laws. Holder
is familiar with the provisions of the Securities Act and Rule 144 thereunder
and understands that the restrictions on transfer on the Warrant Shares may
result in Holder being required to hold the Warrant Shares for an indefinite
period of time.
5. Xxxxxx agrees not to sell, transfer, assign, gift, create a
security interest in, or otherwise dispose of, with or without consideration
(collectively, "TRANSFER") any of the Warrant Shares except pursuant to an
effective registration statement under the Securities Act or an exemption from
registration. As a further condition to any such Transfer, except in the event
that such Transfer is made pursuant to an effective registration statement under
the Securities Act, if in the reasonable opinion of counsel to CDK any Transfer
of the Warrant Shares by the contemplated transferee thereof would not be exempt
from the registration and prospectus delivery requirements of the Securities
Act, CDK may require the contemplated transferee to furnish CDK with an
investment letter setting forth such information and agreements as may be
reasonably requested by CDK to ensure compliance by such transferee with the
Securities Act.
Each certificate evidencing the Warrant Shares will bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
6. Immediately following this exercise of Warrants, if as of the date
of exercise CDK has a class of securities registered under Section 12 of the
Securities Exchange Act of 1934, as amended, the undersigned will not
beneficially own five percent (5%) or more of the then outstanding Common Stock
of CDK (based on the number of shares outstanding set forth in the most recent
periodic report filed by CDK with the Securities and Exchange Commission and any
additional shares which have been issued since that date of which Holder is
aware have been issued).
Number of Warrants Exercised: _________________
Net Exercise ____ Yes ___ No
Dated: ____________________
_______________________
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