Contract
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ENERGY & ENGINE TECHNOLOGY CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
Right
to Purchase __________ shares of Common Stock of Energy & Engine
Technology Corporation (subject to adjustment as provided
herein) |
CLASS
A COMMON STOCK PURCHASE WARRANT
No.
2005-A-001 |
Issue
Date: April ____, 2005 |
ENERGY
& ENGINE TECHNOLOGY CORPORATION, a corporation organized under the laws of
the State of Nevada (the “Company”), hereby certifies that, for value received,
LONGVIEW
FUND, LP, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Fax: (000)
000-0000, or its assigns (the “Holder”), is entitled, subject to the terms set
forth below, to purchase from the Company at any time after the Issue Date until
5:00 p.m., E.S.T on the fifth (5th)
anniversary of the Issue Date (the “Expiration Date”), up to _________ fully
paid and nonassessable shares of Common Stock at a per share purchase price of
$0.12. The aforedescribed purchase price per share, as adjusted from time to
time as herein provided, is referred to herein as the "Purchase Price." The
number and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein. The Company may reduce the Purchase
Price without the consent of the Holder. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in that certain
Subscription Agreement (the “Subscription
Agreement”), dated
April ____, 2005, entered into by the Company and Holder’s of the Class A
Warrants.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) |
The
term “Company” shall include Energy & Engine Technology Corporation
and any corporation which shall succeed or assume the obligations of
Energy & Engine Technology Corporation hereunder.
|
(b) |
The
term “Common Stock” includes (a) the Company's Common Stock, $.001
par value per share, as authorized on the date of the Subscription
Agreement, and (b) any other securities into which or for which any of the
securities described in (a) may be converted or exchanged pursuant to
a plan of recapitalization, reorganization, merger, sale of assets or
otherwise. |
(c) |
The
term “Other Securities” refers to any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or
otherwise) which the holder of the Warrant at any time shall be entitled
to receive, or shall have received, on the exercise of the Warrant, in
lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 5 or
otherwise. |
(d) |
The
term “Warrant Shares” shall mean the Common Stock issuable upon exercise
of this Warrant. |
166
1. |
Exercise
of Warrant. |
1.1. |
Number
of Shares Issuable upon Exercise.
From and after the Issue Date through and including the Expiration Date,
the Holder hereof shall be entitled to receive, upon exercise of this
Warrant in whole in accordance with the terms of subsection 1.2 or
upon exercise of this Warrant in part in accordance with
subsection 1.3, shares of Common Stock of the Company, subject to
adjustment pursuant to Section 4. |
1.2. |
Full
Exercise.
This Warrant may be exercised in full by the Holder hereof by delivery of
an original or facsimile copy of the form of subscription attached as
Exhibit A hereto (the “Subscription Form") duly executed by such
Holder and surrender of the original Warrant within four (4) days of
exercise, to the Company at its principal office or at the office of its
Warrant Agent (as provided hereinafter), accompanied by payment, in cash,
wire transfer or by certified or official bank check payable to the order
of the Company, in the amount obtained by multiplying the number of shares
of Common Stock for which this Warrant is then exercisable by the Purchase
Price then in effect. |
1.3. |
Partial
Exercise.
This Warrant may be exercised in part (but not for a fractional share) by
surrender of this Warrant in the manner and at the place provided in
subsection 1.2 except that the amount payable by the Holder on such
partial exercise shall be the amount obtained by multiplying (a) the
number of whole shares of Common Stock designated by the Holder in the
Subscription Form by (b) the Purchase Price then in effect. On any
such partial exercise, the Company, at its expense, will forthwith issue
and deliver to or upon the order of the Holder hereof a new Warrant of
like tenor, in the name of the Holder hereof or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may request, the
whole number of shares of Common Stock for which such Warrant may still be
exercised. |
1.4. |
Fair
Market Value.
Fair Market Value of a share of Common Stock as of a particular date (the
"Determination Date") shall mean: |
(a) |
If
the Company's Common Stock is traded on an exchange or is quoted on the
National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ"), National Market System, the NASDAQ SmallCap Market or the
American Stock Exchange, LLC, then the closing or last sale price,
respectively, reported for the last business day immediately preceding the
Determination Date; |
(b) |
If
the Company's Common Stock is not traded on an exchange or on the NASDAQ
National Market System, the NASDAQ SmallCap Market or the American Stock
Exchange, Inc., but is traded in the over-the-counter market, then the
average of the closing bid and ask prices reported for the last business
day immediately preceding the Determination
Date; |
167
(c) |
Except
as provided in clause (d) below, if the Company's Common Stock is not
publicly traded, then as the Holder and the Company agree, or in the
absence of such an agreement, by arbitration in accordance with the rules
then standing of the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by education and
training to pass on the matter to be decided;
or |
(d) |
If
the Determination Date is the date of a liquidation, dissolution or
winding up, or any event deemed to be a liquidation, dissolution or
winding up pursuant to the Company's charter, then all amounts to be
payable per share to holders of the Common Stock pursuant to the charter
in the event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common Stock in
liquidation under the charter, assuming for the purposes of this clause
(d) that all of the shares of Common Stock then issuable upon
exercise of all of the Warrants are outstanding at the Determination
Date. |
1.5. |
Company
Acknowledgment.
The Company will, at the time of the exercise of the Warrant, upon the
request of the Holder hereof acknowledge in writing its continuing
obligation to afford to such Holder any rights to which such Holder shall
continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the
Company to afford to such Holder any such
rights. |
1.6. |
Trustee
for Warrant Holders.
In the event that a bank or trust company shall have been appointed as
trustee for the Holder of the Warrants pursuant to Subsection 3.2,
such bank or trust company shall have all the powers and duties of a
warrant agent (as hereinafter described) and shall accept, in its own name
for the account of the Company or such successor person as may be entitled
thereto, all amounts otherwise payable to the Company or such successor,
as the case may be, on exercise of this Warrant pursuant to this
Section 1. |
1.7 |
Delivery
of Stock Certificates, etc. on Exercise.
The Company agrees that the shares of Common Stock purchased upon exercise
of this Warrant shall be deemed to be issued to the Holder hereof as the
record owner of such shares as of the close of business on the date on
which this Warrant shall have been surrendered and payment made for such
shares as aforesaid. As soon as practicable after the exercise of this
Warrant in full or in part, and in any event within four (4)
business
days thereafter, the Company at its expense (including the payment by it
of any applicable issue taxes) will cause to be issued in the name of and
delivered to the Holder hereof, or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct in compliance with
applicable securities laws, a certificate or certificates for the number
of duly and validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such Holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
Fair Market Value of one full share of Common Stock, together with any
other stock or other securities and property (including cash, where
applicable) to which such Holder is entitled upon such exercise pursuant
to Section 1 or otherwise. |
168
2. |
Cashless
Exercise. |
(a) |
If
a Registration Statement (as defined in the Subscription Agreement)
(“Registration Statement”) is effective and the Holder may sell its shares
of Common Stock upon exercise hereof pursuant to the Registration
Statement, this Warrant may be exercisable in whole or in part for cash
only as set forth in Section 1 above. If no such Registration Statement is
available
during the time that such Registration Statement is required to be
effective pursuant to the terms of the Subscription Agreement, then
payment upon exercise may be made at the option of the Holder either in
(i) cash, wire transfer or by certified or official bank check
payable to the order of the Company equal to the applicable aggregate
Purchase Price, (ii) by delivery of Common Stock issuable upon exercise of
the Warrants in accordance with Section (b) below or
(iii) by a combination of any of the foregoing methods, for the
number of Common Stock specified in such form (as such exercise number
shall be adjusted to reflect any adjustment in the total number of shares
of Common Stock issuable to the holder per the terms of this Warrant) and
the holder shall thereupon be entitled to receive the number of duly
authorized, validly issued, fully-paid and non-assessable shares of Common
Stock (or Other Securities) determined as provided
herein. |
(b) |
If
the Fair Market Value of one share of Common Stock is greater than the
Purchase Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the holder may elect to receive shares
equal to the value (as determined below) of this Warrant (or the portion
thereof being cancelled) by surrender of this Warrant at the principal
office of the Company together with the properly endorsed Subscription
Form in which event the Company shall issue to the holder a number of
shares of Common Stock computed using the following
formula: | |||
X=Y
(A-B)
A |
Where |
X= |
the
number of shares of Common Stock to be issued to the
holder | |||
Y= |
the
number of shares of Common Stock purchasable under the Warrant or, if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such calculation) | ||||
A= |
the
Fair Market Value of one share of the Company’s Common Stock (at the date
of such calculation) | ||||
B= |
Purchase
Price (as adjusted to the date of such
calculation) |
(c) |
The
Holder may employ the cashless exercise feature described in Section (b)
above only during the pendency of a Non-Registration Event as described in
Section 11 of the Subscription Agreement. |
For
purposes of Rule 144 promulgated under the 1933 Act, it is intended, understood
and acknowledged that the Warrant Shares issued in a cashless exercise
transaction shall be deemed to have been acquired by the Holder, and the holding
period for the Warrant Shares shall be deemed to have commenced, on the date
this Warrant was originally issued pursuant to the Subscription
Agreement.
169
3. |
Adjustment
for Reorganization, Consolidation, Merger,
etc. |
3.1. |
Reorganization,
Consolidation, Merger, etc.
In case at any time or from time to time, the Company shall
(a) effect a reorganization, (b) consolidate with or merge into
any other person or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, as
a condition to the consummation of such a transaction, proper and adequate
provision shall be made by the Company whereby the Holder of this Warrant,
on the exercise hereof as provided in Section 1, at any time after
the consummation of such reorganization, consolidation or merger or the
effective date of such dissolution, as the case may be, shall receive, in
lieu of the Common Stock (or Other Securities) issuable on such exercise
prior to such consummation or such effective date, the stock and other
securities and property (including cash) to which such Holder would have
been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such Holder had so exercised this
Warrant, immediately prior thereto, all subject to further adjustment
thereafter as provided in Section 4. |
3.2. |
Dissolution.
In the event of any dissolution of the Company following the transfer of
all or substantially all of its properties or assets, the Company, prior
to such dissolution, shall at its expense deliver or cause to be delivered
the stock and other securities and property (including cash, where
applicable) receivable by the Holder of the Warrants after the effective
date of such dissolution pursuant to this Section 3 to a bank or
trust company (a "Trustee") having its principal office in New York,
NY, as trustee for the Holder of the
Warrants. |
3.3. |
Continuation
of Terms.
Upon any reorganization, consolidation, merger or transfer (and any
dissolution following any transfer) referred to in this Section 3,
this Warrant shall continue in full force and effect and the terms hereof
shall be applicable to the Other Securities and property receivable on the
exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any
such transfer, as the case may be, and shall be binding upon the issuer of
any Other Securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of
the Company, whether or not such person shall have expressly assumed the
terms of this Warrant as provided in Section 4. In the event this
Warrant does not continue in full force and effect after the consummation
of the transaction described in this Section 3, then only in such
event will the Company's securities and property (including cash, where
applicable) receivable by the Holder of the Warrants be delivered to the
Trustee as contemplated by
Section 3.2. |
170
3.4 |
Share
Issuance.
Until the Expiration Date, if the Company shall issue any Common Stock
except for the Excepted Issuances (as defined in the Subscription
Agreement), prior to the complete exercise of this Warrant for a
consideration less than the Purchase Price that would be in effect at the
time of such issue, then, and thereafter successively upon each such
issue, the Purchase Price shall be reduced to such other lower issue
price. For purposes of this adjustment, the issuance of any security or
debt instrument of the Company carrying the right to convert such security
or debt instrument into Common Stock or of any warrant, right or option to
purchase Common Stock shall result in an adjustment to the Purchase Price
upon the issuance of the above-described security, debt instrument,
warrant, right, or option and again at any time upon any subsequent
issuances of shares of Common Stock upon exercise of such conversion or
purchase rights if such issuance is at a price lower than the Purchase
Price in effect upon such issuance. The reduction of the Purchase Price
described in this Section 3.4 is in addition to the other rights of the
Holder described in the Subscription
Agreement. |
4. |
Extraordinary
Events Regarding Common Stock.
In the event that the Company shall (a) issue additional shares of
the Common Stock as a dividend or other distribution on outstanding Common
Stock, (b) subdivide its outstanding shares of Common Stock, or
(c) combine its outstanding shares of the Common Stock into a smaller
number of shares of the Common Stock, then, in each such event, the
Purchase Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which
shall be the number of shares of Common Stock outstanding immediately
after such event, and the product so obtained shall thereafter be the
Purchase Price then in effect. The Purchase Price, as so adjusted, shall
be readjusted in the same manner upon the happening of any successive
event or events described herein in this Section 4. The number of
shares of Common Stock that the Holder of this Warrant shall thereafter,
on the exercise hereof as provided in Section 1, be entitled to
receive shall be adjusted to a number determined by multiplying the number
of shares of Common Stock that would otherwise (but for the provisions of
this Section 4) be issuable on such exercise by a fraction of which
(a) the numerator is the Purchase Price that would otherwise (but for
the provisions of this Section 4) be in effect, and (b) the
denominator is the Purchase Price in effect on the date of such
exercise. |
5. |
Certificate
as to Adjustments.
In each case of any adjustment or readjustment in the shares of Common
Stock (or Other Securities) issuable on the exercise of the Warrants, the
Company at its expense will promptly cause its Chief Financial Officer or
other appropriate designee to compute such adjustment or readjustment in
accordance with the terms of the Warrant and prepare a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based, including a statement of
(a) the consideration received or receivable by the Company for any
additional shares of Common Stock (or Other Securities) issued or sold or
deemed to have been issued or sold, (b) the number of shares of
Common Stock (or Other Securities) outstanding or deemed to be
outstanding, and (c) the Purchase Price and the number of shares of
Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to the Holder of the Warrant and any Warrant
Agent of the Company (appointed pursuant to Section 11
hereof). |
171
6. |
Reservation
of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements.
The Company will at all times reserve and keep available, solely for
issuance and delivery on the exercise of the Warrants, all shares of
Common Stock (or Other Securities) from time to time issuable on the
exercise of the Warrant. This Warrant entitles the Holder hereof to
receive copies of all financial and other information distributed or
required to be distributed to the holders of the Company's Common Stock.
|
7. |
Assignment;
Exchange of Warrant.
Subject to compliance with applicable securities laws, this Warrant, and
the rights evidenced hereby, may be transferred by any registered holder
hereof (a "Transferor"). On the surrender for exchange of this Warrant,
with the Transferor's endorsement in the form of Exhibit B attached
hereto (the “Transferor Endorsement Form") and together with an opinion of
counsel reasonably satisfactory to the Company that the transfer of this
Warrant will be in compliance with applicable securities laws, the Company
(at its expense, twice only, but with payment by the Transferor of any
applicable transfer taxes), will issue and deliver to or on the order of
the Transferor thereof a new Warrant or Warrants of like tenor, in the
name of the Transferor and/or the transferee(s) specified in such
Transferor Endorsement Form (each a "Transferee"), calling in the
aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant so surrendered by the
Transferor. No such transfers shall result in a public distribution of the
Warrant. |
8. |
Replacement
of Warrant.
On receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant and, in the case of any
such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement or security reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company (at its expense, twice only),
will execute and deliver, in lieu thereof, a new Warrant of like
tenor. |
9. |
Registration
Rights.
The Holder of this Warrant has been granted certain registration rights by
the Company. These registration rights are set forth in the Subscription
Agreement. The terms of the Subscription Agreement are incorporated herein
by this reference. |
10. |
Maximum
Exercise.
The Holder shall not be entitled to exercise this Warrant on an exercise
date nor may the Company exercise its right to give a Call Notice (as
defined in Section 11) in connection with that number of Common Stock
which would be in excess of the sum of (i) the number of shares of
Common Stock beneficially owned by the Holder and its affiliates on an
exercise date or Call Date, and (ii) the number of Common Stock
issuable upon the exercise of this Warrant with respect to which the
determination of this limitation is being made on an exercise date or Call
Date, which would result in beneficial ownership by the Holder and its
affiliates of more than 4.99% of the outstanding Common Stock on such
date. For the purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the
Holder shall not be limited to aggregate exercises which would result in
the issuance of more than 4.99%. The
Holder may waive the conversion limitation described in this Section 10,
in whole or in part and increase the amount that may be beneficially
owned, upon and effective after 61 days prior written notice to the
Company.
The Holder may allocate which of the equity of the Company deemed
beneficially owned by the Subscriber shall be included in the 4.99% amount
described above and which shall be allocated to the excess above
4.99%. |
172
11. |
Call.
The Company shall have the option to "call" the exercise of the shares
issuable upon exercise of this Warrant (the "Warrant Call") in accordance
with and governed by the following: |
(a) |
The
Company shall exercise the Warrant Call by giving to the Warrant Holder a
written notice of call (the "Call Notice") during the period in which the
Warrant Call may be exercised. The effective date of each Call Notice (the
“Call Date”) is the date on which notice is effective under the notice
provision of Section 14 of this Warrant. |
(b) |
The
Company's right to exercise the Warrant Call shall commence twenty (20)
trading days after the actual effective date of a Registration Statement
described in Section 11.1(iv) of the Subscription Agreement and end thirty
trading days prior to the Expiration Date. |
(c) |
The
number of shares of Common Stock to be issued upon exercise of the Warrant
which are subject to a Call Notice must be registered in a Registration
Statement effective from thirty (30) trading days prior to the Call Date
and through the date such Common Stock is actually delivered to the
Warrant Holder (“Delivery Date”). |
(d) |
A
Call Notice may be given not sooner than ten (10) trading days after the
prior Call Date. |
(e) |
A
Call Notice may be given by the Company in connection with shares of
Common Stock issuable upon exercise of the Warrant only within ten days
after the Common Stock has had a closing bid price as reported for the
Principal Market (as defined in the Subscription Agreement) equal to or
more than two hundred percent (200%) of the Purchase Price for ten (10)
consecutive trading days (“Lookback Period”). The maximum amount of
Warrant Shares subject to a Warrant Call shall be equal to twenty percent
of the trading volume of the Common Stock as reported by Bloomberg L.P.
for the twenty trading days preceding a Call Date.
|
(f) |
The
Common Stock must be listed on the Principal Market for the Lookback
Period and through the Delivery Date. |
(g) |
The
Company shall not have received a notice from the Principal Market during
the sixty trading days prior to the Call Date that the Company or its
Common Stock does not meet the requirements for continued quotation,
listing or trading on the Principal Market. |
(h) |
The
Company and the Common Stock shall meet the requirements for continued
quotation, listing or trading on the Principal Market for the Lookback
Period and through the Delivery Date. |
(i) |
Unless
otherwise agreed to by the Holder of this Warrant, a Call Notice must be
given to all Warrant Holders who receive Warrants similar to this Warrant
(in terms of exercise price and other principal terms) issued on or about
the same Issue Date as this Warrant, in proportion to the amounts of
Common Stock which may be purchased by the respective Warrant Holders in
accordance with the respective Warrants held by
each. |
173
(j) |
The
Warrant Holder shall exercise his Warrant rights and purchase the Called
Warrant Shares and pay for same within ten trading days after the Call
Date. If the Warrant Holder fails to timely pay the amount required by the
Warrant Call, the Company’s sole remedy shall be to cancel a corresponding
amount of this Warrant. |
(k) |
The
Company may not exercise the right to Call this Warrant after the
occurrence of a default by the Company of a material term of this Warrant
or the Transaction Documents (as defined in the Subscription Agreement) or
the Notes referred to in the Subscription
Agreement. |
12. |
Warrant
Agent.
The Company may, by written notice to the Holder of the Warrant, appoint
an agent (a “Warrant Agent”) for the purpose of issuing Common Stock (or
Other Securities) on the exercise of this Warrant pursuant to
Section 1, exchanging this Warrant pursuant to Section 7, and
replacing this Warrant pursuant to Section 8, or any of the
foregoing, and thereafter any such issuance, exchange or replacement, as
the case may be, shall be made at such office by such Warrant Agent.
|
13. |
Transfer
on the Company's Books.
Until this Warrant is transferred on the books of the Company, the Company
may treat the registered holder hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the
contrary. |
14. |
Notices.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with
charges prepaid, or (iv) transmitted by hand delivery, telegram, or
facsimile, addressed as set forth below or to such other address as such
party shall have specified most recently by written notice. Any notice or
other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile machine, at
the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or
upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: if to the Company to:
Energy
& Engine Technology Corporation, 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx, XX
00000, Attn: Jolie X. Xxxx, Esq., telecopier number: (000)
000-0000. |
15. |
Miscellaneous.
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against
which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with
and governed by the laws of New York. Any dispute relating to this Warrant
shall be adjudicated in New York County in the State of New York. The
headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.
|
174
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
ENERGY
& ENGINE TECHNOLOGY CORPORATION | ||
By: |
||
Name:
|
||
Title:
|
Witness: |
|
175
Exhibit
A
FORM OF
SUBSCRIPTION
(to be
signed only on exercise of Warrant)
TO: ENERGY
& ENGINE TECHNOLOGY CORPORATION
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
___ ________
shares of the Common Stock covered by such Warrant; or
___ the
maximum number of shares of Common Stock covered by such Warrant pursuant to the
cashless exercise procedure set forth in Section 2.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is $___________. Such
payment takes the form of (check applicable box or boxes):
___ $__________
in lawful money of the United States; and/or
___ the
cancellation of such portion of the attached Warrant as is exercisable for a
total of _______ shares of Common Stock (using a Fair Market Value of $_______
per share for purposes of this calculation); and/or
___ the
cancellation of such number of shares of Common Stock as is necessary, in
accordance with the formula set forth in Section 2, to exercise this
Warrant with respect to the maximum number of shares of Common Stock purchasable
pursuant to the cashless exercise procedure set forth in
Section 2.
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to
_______________________________________________________________________ whose
address is
__________________________________________________________________________________________________________________________________________________________________________
Number of
Shares of Common Stock Beneficially Owned on the date of exercise: Less than
five percent (5%) of the outstanding Common Stock of Energy & Engine
Technology Corporation
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the "Securities Act"), or pursuant to an exemption from registration
under the Securities Act.
Dated: |
|||
(Signature
must conform to name of holder
as
specified on the face of the Warrant) | |||
(Address) | |||
176
Exhibit B
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading "Transferees" the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of Energy & Engine Technology Corporation to which the within Warrant
relates specified under the headings "Percentage Transferred" and "Number
Transferred," respectively, opposite the name(s) of such person(s) and appoints
each such person Attorney to transfer its respective right on the books of
Energy & Engine Technology Corporation with full power of substitution in
the premises.
Transferees |
Percentage
Transferred |
Number
Transferred |
Dated: |
|||
(Signature
must conform to name of holder as
Specified
on the face of the warrant) |
Signed
in the presence of: |
||
(Name) |
||
(address) |
ACCEPTED
AND AGREED: |
||
[TRANSFEREE] |
||
(address) | ||
(Name) |
177