Contract
Exhibit 4.3
NEITHER
THIS WARRANT NOR THE SECURITIES INTO WHICH THIS WARRANT IS EXERCISABLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.
IN
ADDITION, THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF
ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT
IN THE EFFECTIVE ECONOMIC DISPOSITION OF SUCH SECURITIES BY ANY PERSON,
UNTIL JULY 5TH,
2010, EXCEPT IN ACCORDANCE WITH FINRA RULE 5110(G)(2).
LINK
RESOURCES, INC.
PLACEMENT
AGENT WARRANT
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Initial
Holder:
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Original Issue
Date: January 5, 2009
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No. of Shares Subject to
Warrant:
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Exercise Price Per
Share: $2.40
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Expiration
Time: 5:00 p.m., New York time,
on
January 5, 2013
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Link Resources, Inc., a Nevada
corporation (the “Company”), hereby certifies
that, for value received, the Initial Holder shown above, or its permitted
registered assigns (the “Holder”), is entitled to
purchase from the Company up to the number of shares of its common stock, par
value $0.001 per share (the “Common Stock”), shown
above (each such share, a “Warrant Share” and all such
shares, the “Warrant
Shares”) at the exercise price shown above (as may be adjusted from time
to time as provided herein, the “Exercise Price”), at any time
and from time to time on or original issue date indicated above (the “Original Issue Date”) and
through and including the expiration time shown above (the “Expiration Time”), and subject
to the following terms and conditions:
1.
Definitions. In
addition to the terms defined elsewhere in this Warrant, capitalized terms that
are not otherwise defined herein have the meanings given to such terms in the
SPA.
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2.
List of Warrant
Holders. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the “Warrant Register”), in the
name of the record Holder (which shall include the Initial Holder or, as the
case may be, any registered assignee to which this Warrant is permissibly
assigned hereunder from time to time). The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
3.
List of Transfers;
Restrictions on Transfer. The Company shall register any transfer of all
or any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Company at its address specified herein. Upon any such registration or
transfer, a new Warrant to purchase Common Stock, in substantially the form of
this Warrant (any such new Warrant, a “New Warrant”), evidencing the
portion of this Warrant so transferred shall be issued to the transferee and a
New Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, shall be issued to the transferring Holder. The acceptance of the
New Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the New Warrant
that the Holder has in respect of this Warrant.
4.
Exercise and Duration of
Warrant.
(a)
All or any part of this Warrant
shall be exercisable by the registered Holder in any manner permitted by
Section 10 of this Warrant at any time and from time to time on or after
the Original Issue Date and through and including the Expiration Time. Subject
to Section 11 hereof, at the Expiration Time, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value and this
Warrant shall be terminated and shall no longer be outstanding.
(b)
The Holder may exercise this Warrant by delivering to the Company: (i) an
exercise notice, in the form attached hereto (the “Exercise Notice”), completed
and duly signed, and (ii) payment by wire transfer of immediately available
funds to an account designated by the Company of the Exercise Price for the
number of Warrant Shares as to which this Warrant is being exercised. The
date such items are delivered to the Company (as determined in accordance with
the notice provisions hereof) is an “Exercise Date.” The
Holder shall be required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Exercise Notice
shall have the same effect as cancellation of the original Warrant and issuance
of a New Warrant evidencing the right to purchase the remaining number of
Warrant Shares.
(c)
The Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant pursuant to the terms
hereof.
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5.
Delivery of Warrant
Shares.
(a)
Upon exercise of this
Warrant, the Company shall promptly (but in no event later than three (3)
Trading Days after the Exercise Date) issue or cause to be issued and cause to
be delivered to or upon the written order of the Holder and in such name or
names as the Holder may designate, a certificate for the Warrant Shares issuable
upon such exercise, free of restrictive legends. “Trading Day” shall mean a date
on which the Company’s Common Stock trades on its principal trading market.
The Holder, or any Person permissibly so designated by the Holder to
receive Warrant Shares, shall be deemed to have become the holder of record of
such Warrant Shares as of the Exercise Date. The Company shall, upon the
written request of the Holder, use its best efforts to deliver, or cause to be
delivered, Warrant Shares hereunder electronically through the Depository Trust
and Clearing Corporation or another established clearing corporation performing
similar functions, if available; provided, that, the Company
may, but will not be required to, change its transfer agent if its current
transfer agent cannot deliver Warrant Shares electronically through the
Depository Trust and Clearing Corporation. If as of the time of exercise
the Warrant Shares constitute restricted or control securities, the Holder, by
exercising, agrees not to resell them except in compliance with all applicable
securities laws.
(b)
To the extent permitted
by law, the Company’s obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional, irrespective of
any action or inaction by the Holder to enforce the same, any waiver or consent
with respect to any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other Person, and
irrespective of any other circumstance that might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit a Holder’s right to pursue
any other remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief
with respect to the Company’s failure to timely deliver certificates
representing shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
(c)
If the Company fails to
cause its transfer agent to transmit to the Holder a certificate or the
certificates (either physical or electronic) representing the Warrant Shares
pursuant to the terms hereof by applicable delivery date, then, the Holder will
have the right to rescind such exercise.
6.
Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder
for any issue or transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such certificates, all
of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not
be required to pay any tax that may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares or the
Warrants in a name other than that of the Holder. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
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7.
Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for
and upon cancellation hereof, or in lieu of and substitution for this Warrant, a
New Warrant, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may prescribe. If a New
Warrant is requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a condition
precedent to the Company’s obligation to issue the New Warrant.
8.
Reservation of Warrant
Shares. The Company covenants that it will at all times reserve and
keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares that are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other contingent purchase rights of
persons other than the Holder (taking into account the adjustments and
restrictions of Section 9). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable.
9.
Certain Adjustments to
Exercise Price. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 9.
(a) Adjustments for Stock Splits
and Combinations and Stock Dividends. If the Company
shall at any time or from time to time after the date hereof, effect a stock
split or combination of the outstanding Common Stock or pay a stock dividend in
shares of Common Stock, then the Exercise Price shall be proportionately
adjusted. Any adjustments under this Section 9(a) shall be effective
at the close of business on the date the stock split or combination becomes
effective or the date of payment of the stock dividend, as
applicable.
(b) Merger Sale,
Reclassification, etc. In case of any: (i)
consolidation or merger (including a merger in which the Company is the
surviving entity), (ii) sale or other disposition of all or substantially all of
the Company’s assets or distribution of property to shareholders (other than
distributions payable out of earnings or retained earnings), or
reclassification, change or conversion of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the exercise of
this Warrant) or any similar corporate reorganization on or after the date
hereof, then and in each such case the Holder of this Warrant, upon the exercise
hereof at any time thereafter shall be entitled to receive, in lieu of the stock
or other securities and property receivable upon the exercise hereof prior to
such consolidation, merger, sale or other disposition, reclassification, change,
conversion or reorganization, the stock or other securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto.
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(c) Adjustments for Issuance of
Additional Shares of Common Stock.
(i) In the
event the Company, shall, at any time, from time to time, issue or sell any
additional shares of Common Stock (other than pursuant to Common Stock
Equivalents (hereafter defined) granted or issued prior to the issuance date of
this Warrant) (“Additional
Shares of Common Stock”), at a price per share less than the Exercise
Price then in effect or without consideration, then the Exercise Price upon each
such issuance shall be adjusted to that price (rounded to the nearest cent)
determined by multiplying the Exercise Price then in effect by a
fraction:
(A) the
numerator of which shall be equal to the sum of (1) the number of shares of
Common Stock outstanding immediately prior to the issuance of such Additional
Shares of Common Stock plus (2) the number
of shares of Common Stock (rounded to the nearest whole share) which the
aggregate consideration for the total number of such Additional Shares of Common
Stock so issued would purchase at a price per share equal to the Exercise Price
then in effect, and
(B) the
denominator of which shall be equal to the number of shares of Common Stock
outstanding immediately after the issuance of such Additional Shares of Common
Stock.
(ii) The
provisions of paragraph (i) of Section 9(c) shall not apply to any issuance of
Additional Shares of Common Stock for which an adjustment is provided elsewhere
in this Section 9). No adjustment of the number of Shares for which
this Warrant shall be convertible shall be made under this clause (ii) upon the
issuance of any Additional Shares of Common Stock which are issued pursuant to
the exercise of any Common Stock Equivalents, if any such adjustment shall
previously have been made upon the issuance of such Common Stock Equivalents
pursuant to the other provisions of this Section 9.
(iii) Issuance of Common Stock
Equivalents. The provisions of this Section 9(c) shall apply
if (A) the Company, at any time after the issuance date of this Warrant, shall
issue any securities convertible into or exchangeable for, directly or
indirectly, Common Stock (“Convertible Securities”),
other than the Convertible Notes, or (B) any rights or warrants or options to
purchase any such Common Stock or Convertible Securities (collectively, the
“Common Stock
Equivalents”) shall be issued or sold. If the price per share
for which Additional Shares of Common Stock may be issuable pursuant to any such
Common Stock Equivalent shall be less than the applicable Exercise Price then in
effect, or if, after any such issuance of Common Stock Equivalents, the price
per share for which Additional Shares of Common Stock may be issuable thereafter
is amended or adjusted, and such price as so amended shall be less than the
applicable Exercise Price in effect at the time of such amendment or adjustment,
then the applicable Exercise Price upon each such issuance or amendment shall be
adjusted as provided in the first sentence of subsection (c)(i) of this Section
9. No adjustment shall be made to the Exercise Price upon the
issuance of Common Stock pursuant to the exercise, conversion or exchange of any
Convertible Security or Common Stock Equivalent where an adjustment to the
Exercise Price was made as a result of the issuance or purchase of any
Convertible Security or Common Stock Equivalent.
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(iv) Certain Issues
Excepted. Anything herein to the contrary notwithstanding, the
Company shall not be required to make any adjustment to the Exercise Price under
this Section 9 in connection with securities of the Company issued: (i) in
connection with a merger, acquisition or consolidation, (ii) in connection with
bona fide joint venture, strategic license or similar business partnering
arrangements (provided that the transaction or arrangement is not primarily for
the purpose of raising capital from Person whose primary business is investing
in securities), (iii) upon exercise of this Warrant or the other Warrants issued
together with the Notes; (iv) upon exercise any warrants issued to the placement
agents and its designees for the transactions contemplated hereby; and (v) in
connection with any share split, share dividend, recapitalization or similar
transaction by the Company for which adjustment is made pursuant to this Section
9.
(v) Floor
Price. Notwithstanding any provision of this Warrant to the
contrary, no adjustment pursuant to Section 9(c) shall cause the Exercise Price
to be less than $1.20, as adjusted for any stock dividend, stock split, stock
combination, reclassification or similar transaction.
10.
No Fractional Shares.
No fractional Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares that would otherwise
be issuable, the Company shall pay cash equal to the product of such fraction
multiplied by the closing price of one Warrant Share as reported by the
applicable Trading Market on the Exercise Date.
11.
Notices.
Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice) shall be delivered in
accordance with the procedures set forth in Section 9.2 of the SPA.
12.
Warrant Agent.
The Company shall serve as warrant agent under this Warrant. Upon thirty (30)
days’ notice to the Holder, the Company may appoint a new warrant agent.
Any corporation into which the Company or any new warrant agent may be
merged or any corporation resulting from any consolidation to which the Company
or any new warrant agent shall be a party or any corporation to which the
Company or any new warrant agent transfers substantially all of its corporate
trust or shareholders services business shall be a successor warrant agent under
this Warrant without any further act. Any such successor warrant agent shall
promptly cause notice of its succession as warrant agent to be mailed (by first
class mail, postage prepaid) to the Holder at the Holder’s last address as shown
on the Warrant Register.
13.
Miscellaneous.
(a)
This Warrant shall be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. Subject to the preceding sentence, nothing in this
Warrant shall be construed to give to any Person other than the Company and the
Holder any legal or equitable right, remedy or cause of action under this
Warrant. This Warrant may be amended only in writing signed by the Company
and the Holder, or their successors and assigns.
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(b)
Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, New York for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of this
Warrant, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Note and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. EACH PARTY
HERETO (INCLUDING ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c)
The headings herein are
for convenience only, do not constitute a part of this Warrant and shall not be
deemed to limit or affect any of the provisions hereof.
(d)
In case any one or more
of the provisions of this Warrant shall be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the
parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefore, and
upon so agreeing, shall incorporate such substitute provision in this
Warrant.
(e)
Prior to exercise of this
Warrant, the Holder hereof shall not, by reason of by being a Holder, be
entitled to any rights of a stockholder with respect to the Warrant
Shares.
(f)
No provision hereof, in
the absence of any affirmative action by Holder to exercise this Warrant to
purchase Warrant Shares, and no enumeration herein of the rights or privileges
of Holder, shall give rise to any liability of Holder for the purchase price of
any Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
Company has caused this Placement Agent Warrant to be duly executed by its
authorized officer as of the date first indicated above.
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LINK
RESOURCES, INC.
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By:
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Name:
Xxxxxxx Xx
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Title: President,
CEO and Chairman
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LINK
RESOURCES, INC.
EXERCISE
NOTICE
Ladies
and Gentlemen:
(1)
The undersigned hereby elects to exercise the above-referenced Warrant with
respect to
[ ]
shares of Common Stock. Capitalized terms used herein and not otherwise
defined herein have the respective meanings set forth in the
Warrant.
(2)
The holder hereby tenders the sum of
$ ______________ to the Company in accordance
with the terms of the Warrant.
(3)
Pursuant to this Exercise Notice, the Company shall deliver to the Holder the
number of Warrant Shares determined in accordance with the terms of the
Warrant.
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Dated:
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HOLDER:
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name
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By:
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Title:
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LINK
RESOURCES, INC.
FORM
OF ASSIGNMENT
To be
completed and signed only upon transfer of Warrant
FOR VALUE RECEIVED, the
undersigned hereby sells, assigns and transfers unto _________________ the right
represented by the within Warrant to purchase _________________ shares of Common
Stock to which the within Warrant relates and appoints __________________
attorney to transfer said right on the books of the Company with full power of
substitution in the premises.
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Dated:
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TRANSFEROR:
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name
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By:
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Title:
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TRANSFEREE:
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Print
name
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By:
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Title:
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WITNESS:
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Address
of Transferee:
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Print
name
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