THIS WARRANT AND THE SECURITIES PURCHASABLE UPON ITS EXERCISE HAVE BEEN AND WILL
BE, AS THE CASE MAY BE, ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNLESS SO REGISTERED OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE FOR SUCH SALE, TRANSFER, OR DISPOSITION.
WARRANT TO PURCHASE
COMMON STOCK OF
ORYX TECHNOLOGY CORP.
WARRANT #C-070701A
FOR VALUE RECEIVED, subject to the terms and conditions herein set
forth, Newport Capital Consultants Inc. ("Holder") is entitled to purchase from
Oryx Technology Corp., a Delaware corporation (the "Company"), at any time prior
to the Expiration Date (as defined below), at a price per share as set forth in
Section 1 hereof (the "Warrant Price"), the number of fully paid and
non-assessable shares of Common Stock of the Company as set forth in Section 2
hereof (the "Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be Six Dollars and Fifty Two Cents ($6.52) (the "Warrant
Price"), subject to adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon exercise of
this Warrant shall be Twenty Five Thousand (25,000), subject to adjustment as
provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in accordance
with Section 8 below, this Warrant shall expire and shall no longer be
exercisable after July 7, 2006 (the "Expiration Date").
4. No Fractional Shares. This Warrant may not be exercised as to
fractional Shares.
5. No Stockholder Rights. This Warrant shall not entitle Holder to any
of the rights of a stockholder of the Company.
6. Reservation of Shares. The Company covenants that during the period
this Warrant is exercisable it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance
of the maximum number of shares of Common Stock issuable upon the exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers to instruct the Company's transfer
agent to issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
1
7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the Company, together
with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
(b) As promptly as practicable on or after such date, the Company
shall cause to be issued and delivered to Holder a certificate or certificates
for the number of full Shares issuable upon such exercise. Notwithstanding the
foregoing or any other provision of this Warrant, this Warrant can be exercised
in part, up to a maximum of three (3) times. Each partial exercise shall not be
for less than one thousand (1,000) Shares at any time unless at such time less
than one thousand (1,000) such Shares are subject to such exercise.
(c) Issuance of certificates for the Shares upon the exercise of
this Warrant shall be made without charge to the registered holder hereof for
any issue or transfer tax or other incidental expense with respect to the
issuance of such certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 hereof.
8. Automatic Termination. In the event of (i) the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
with or into a third party in which the Company's stockholders do not own at
least a majority of the outstanding voting securities of the surviving
corporation or business entity after such transaction (based solely on such
Company stockholders' holdings of the Company prior to the transaction), (ii)
any breach by Holder of the service agreement by and between Holder and the
Company, (iii) Holders' termination of the service agreement by and between
Holder and the Company, without cause, or (iv) the average closing price for the
Company's Common Stock exceeding $19.56 per share (as adjusted for stock splits,
combinations and the like) for a period of thirty (30) consecutive trading days,
then the Company shall give Holder at least thirty (30) days written notice of
the proposed effective date and terms of such offering, transaction or
agreements, and if the Warrant has not been
2
exercised before the effective date set forth in such notice, then this Warrant
and the rights hereunder shall be automatically terminated.
9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be assigned or
transferred, except as provided herein and in accordance with and subject to the
provisions of (i) applicable state securities laws, and (ii) the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (such
Act and such rules and regulations being hereinafter collectively referred to as
the "Act"). Any purported transfer or assignment made other than in accordance
with this Section 9 shall be null and void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred or
assigned only with the prior written consent of the Company, which shall be
granted only upon receipt by the Company of an opinion of counsel satisfactory
to the Company that (i) the transferee is a person to whom this Warrant may be
legally transferred without registration under the Act, and (ii) such transfer
will not violate any applicable law or governmental rule or regulation,
including, without limitation, any applicable federal or state securities law.
(c) Any assignment permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, if
any. In such event, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall be promptly canceled.
10. Adjustments to Shares.
(a) If outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Warrant Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Warrant Price, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Warrant Price in effect immediately prior to
such adjustment, by (ii) the Warrant Price in effect immediately after such
adjustment.
(b) In case of any reclassification or change 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 after the consummation of such reclassification,
change, reorganization, merger or conveyance, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
hereof prior to such consummation, the stock or
3
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, all subject to further adjustment as provided in Section 10(a); and in
each such case, the terms of this Section 10 shall be applicable to the shares
of stock or other securities properly receivable upon the exercise of this
Warrant after such consummation.
(c) When any adjustment is required to be made in the number of
shares of Common Stock purchasable hereunder or the Warrant Price pursuant to
this Section 10, the Company shall promptly mail to the Holder a certificate
setting forth (i) a brief statement of the facts requiring such adjustment, (ii)
the Warrant Price after such adjustment and (iii) the kind and amount of stock
or other securities or property into which this Warrant shall be exercisable
after such adjustment.
(d) The Company shall not, by amendment of its Amended and Restated
Articles of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
its terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out of all the provisions of
this Section 10 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Section 10 against impairment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
12. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. All notices and other communications from the
Company to Holder shall be mailed by prepaid courier or first-class registered
or certified mail, postage pre-paid, to the address furnished to the Company in
writing by the last holder who shall have furnished an address to the Company in
writing.
13. Amendment and Waiver. Any provisions of this Warrant (including,
without limitation, termination of exercisability) may be amended or waived, and
any and all such amendments or waivers shall be binding upon Holder, only if
approved in writing by the Company and Holder.
4
Issued this 7th day of July, 2001.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CFO
5
SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably exercises such warrant for, and purchases
______ shares of Oryx Technology Corp. Common Stock, purchasable upon the
exercise of such Warrant, and herewith makes payment therefor, all at the price
and on the terms and conditions specified in such Warrant.
Dated:
--------------
-----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Name)
-----------------------------------
(Street Address)
-----------------------------------
(City, State, Zip Code)
1
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
----------------------------------
----------------------------------
----------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Oryx Technology Corp. Common Stock purchasable under the
within Warrant, hereby irrevocably constituting and appointing _______________
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated:
--------------
-------------------------------
(Signature of Registered Owner)
2
THIS WARRANT AND THE SECURITIES PURCHASABLE UPON ITS EXERCISE HAVE BEEN AND WILL
BE, AS THE CASE MAY BE, ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNLESS SO REGISTERED OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE FOR SUCH SALE, TRANSFER, OR DISPOSITION.
WARRANT TO PURCHASE
COMMON STOCK OF
ORYX TECHNOLOGY CORP.
WARRANT #C -070701__
FOR VALUE RECEIVED, subject to the terms and conditions herein set
forth, Newport Capital Consultants Inc. ("Holder") is entitled to purchase from
Oryx Technology Corp., a Delaware corporation (the "Company"), at any time prior
to the Expiration Date (as defined below), at a price per share as set forth in
Section 1 hereof (the "Warrant Price"), the number of fully paid and
non-assessable shares of Common Stock of the Company as set forth in Section 2
hereof (the "Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be Three Dollars and Twenty Six Cents ($3.26) (the "Warrant
Price"), subject to adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon exercise of
this Warrant shall be Twenty Five Thousand (25,000), subject to adjustment as
provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in accordance
with Section 8 below, this Warrant shall expire and shall no longer be
exercisable after July 7, 2006 (the "Expiration Date").
4. No Fractional Shares. This Warrant may not be exercised as to
fractional Shares.
5. No Stockholder Rights. This Warrant shall not entitle Holder to any
of the rights of a stockholder of the Company.
6. Reservation of Shares. The Company covenants that during the period
this Warrant is exercisable it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance
of the maximum number of shares of Common Stock issuable upon the exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers to instruct the Company's transfer
agent to issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
1
7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the Company, together
with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
(b) As promptly as practicable on or after such date, the Company
shall cause to be issued and delivered to Holder a certificate or certificates
for the number of full Shares issuable upon such exercise. Notwithstanding the
foregoing or any other provision of this Warrant, this Warrant can be exercised
in part, up to a maximum of three (3) times. Each partial exercise shall not be
for less than one thousand (1,000) Shares at any time unless at such time less
than one thousand (1,000) such Shares are subject to such exercise.
(c) Issuance of certificates for the Shares upon the exercise of
this Warrant shall be made without charge to the registered holder hereof for
any issue or transfer tax or other incidental expense with respect to the
issuance of such certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 hereof.
8. Automatic Termination. In the event of (i) the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
with or into a third party in which the Company's stockholders do not own at
least a majority of the outstanding voting securities of the surviving
corporation or business entity after such transaction (based solely on such
Company stockholders' holdings of the Company prior to the transaction), (ii)
any breach by Holder of the service agreement by and between Holder and the
Company, (iii) Holders' termination of the service agreement by and between
Holder and the Company, without cause, or (iv) the average closing price for the
Company's Common Stock exceeding $19.56 per share (as adjusted for stock splits,
combinations and the like) for a period of thirty (30) consecutive trading days,
then the Company shall give Holder at least thirty (30) days written notice of
the proposed effective date and terms of such offering, transaction or
agreements, and if the Warrant has not been
2
exercised before the effective date set forth in such notice, then this Warrant
and the rights hereunder shall be automatically terminated.
9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be assigned or
transferred, except as provided herein and in accordance with and subject to the
provisions of (i) applicable state securities laws, and (ii) the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (such
Act and such rules and regulations being hereinafter collectively referred to as
the "Act"). Any purported transfer or assignment made other than in accordance
with this Section 9 shall be null and void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred or
assigned only with the prior written consent of the Company, which shall be
granted only upon receipt by the Company of an opinion of counsel satisfactory
to the Company that (i) the transferee is a person to whom this Warrant may be
legally transferred without registration under the Act, and (ii) such transfer
will not violate any applicable law or governmental rule or regulation,
including, without limitation, any applicable federal or state securities law.
(c) Any assignment permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, if
any. In such event, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall be promptly canceled.
10. Adjustments to Shares.
(a) If outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Warrant Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Warrant Price, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Warrant Price in effect immediately prior to
such adjustment, by (ii) the Warrant Price in effect immediately after such
adjustment.
(b) In case of any reclassification or change 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 after the consummation of such reclassification,
change, reorganization, merger or conveyance, shall be entitled to receive, in
lieu of the stock or
3
other securities and property receivable upon the exercise hereof prior to such
consummation, 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, all subject to further adjustment as
provided in Section 10(a); and in each such case, the terms of this Section 10
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
(c) When any adjustment is required to be made in the number of
shares of Common Stock purchasable hereunder or the Warrant Price pursuant to
this Section 10, the Company shall promptly mail to the Holder a certificate
setting forth (i) a brief statement of the facts requiring such adjustment, (ii)
the Warrant Price after such adjustment and (iii) the kind and amount of stock
or other securities or property into which this Warrant shall be exercisable
after such adjustment.
(d) The Company shall not, by amendment of its Amended and Restated
Articles of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
its terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out of all the provisions of
this Section 10 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Section 10 against impairment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
12. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. All notices and other communications from the
Company to Holder shall be mailed by prepaid courier or first-class registered
or certified mail, postage pre-paid, to the address furnished to the Company in
writing by the last holder who shall have furnished an address to the Company in
writing.
13. Amendment and Waiver. Any provisions of this Warrant (including,
without limitation, termination of exercisability) may be amended or waived, and
any and all such amendments or waivers shall be binding upon Holder, only if
approved in writing by the Company and Holder.
4
Issued this 7th day of July, 2001.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxxx
Title:CFO
5
SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably exercises such warrant for, and purchases
______ shares of Oryx Technology Corp. Common Stock, purchasable upon the
exercise of such Warrant, and herewith makes payment therefor, all at the price
and on the terms and conditions specified in such Warrant.
Dated:
--------------
-----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Name)
-----------------------------------
(Street Address)
-----------------------------------
(City, State, Zip Code)
1
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
----------------------------------
----------------------------------
----------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Oryx Technology Corp. Common Stock purchasable under the
within Warrant, hereby irrevocably constituting and appointing _________________
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated:
--------------
-------------------------------
(Signature of Registered Owner)
2
