Exhibit 10.18
LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into by and between NOXSO
Corporation, a Virginia corporation (the "Company") and TJ Management Group,
LLC, a New York limited liability company ("Lender") to be effective as of the
21st day of December 2004.
WITNESSETH:
WHEREAS, the Company is in need of immediate capital to fund its
planned operations.
WHEREAS, Lender is willing to make a loan to the Company in the total
aggregate principal amount of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000 USD)
upon the terms and conditions set forth herein and the Company is willing to
borrow the stated amount upon such terms.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. The Loan.
1.1. On the date hereof, Lender agrees to make a loan (the "Loan") to
the Company in the principal amount of ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000 USD). The Loan shall be evidenced by a promissory note in
substantially the same form as attached hereto as Exhibit "A" (the "Note"),
which Note shall be executed by the Company and delivered to Lender upon
delivery of a fully executed copy of this Agreement. The Note shall be in the
principal amount of the funds borrowed.
1.2. The Company shall use the net proceeds of the Note for working
capital and other purposes.
1.3 The Company, Rocky Point Partners, LLC and Flowerdale, LLC have
reached agreement whereby a security interest will be granted by Flowerdale, LLC
as collateral to Lender to secure repayment of this Note in certain property
acquired under the Agreement dated November 1, 2004, located at 0000 XXXX 00 XX,
Xxxxxx, Xxxxx (the "Property"), but the title to the Property is still held by
Flowerdale, LLC. When title to the Property is transferred to the Company the
Company will pay off the Note out of proceeds of financing from the purchase of
the Property.
Section 2. Finance Charges. All outstanding principal shall bear interest at the
rate of two and one-half percent (2.5%) a.p.r. In addition, on the effective
date of this Agreement, Lender shall receive 25,000 restricted shares of the
Company's common stock and warrants exercisable for 50,000 restricted shares of
the Company's common stock, which warrants shall be in substantially the form
attached hereto as Exhibit "B". At the time the Loan is repaid in full the
Lender will receive an additional 25,000 restricted shares of the Company's
common stock.
Section 3. Payments. Principal and interest shall be due and payable in a single
balloon payment on the six-month anniversary of the Note. The Company may, from
time to time, in the Company's discretion, make one or more periodic payments to
Lender. Such payments shall be credited to the Company's account on the date
that such payment is received by Lender. Such payments shall be applied first to
late charges and collection costs, if any, then to accrued interest to the date
of payment, and then to the principal outstanding. In addition, the Company
anticipates the transfer of title to certain property located at 0000 XXXX 00
XX, Xxxxxx, Xxxxx (the "Property") acquired under the Agreement dated November
1, 2004, and using the Property to obtain significant funding. If and when
received, the Company will use any funding received in connection with the
Property to pay off the Loan.
Section 4. Deliveries. Contemporaneously with the execution of this Agreement,
the parties shall deliver to each other the following:
(a) The properly executed Note of even date herewith by and
between Lender and the Company.
(b) The Warrant of even date herewith by and between Lender and
the Company.
(c) The Loan proceeds.
(d) As provided in Section 2., 25,000 restricted shares of the
Company's common stock and warrants exercisable for 50,000
restricted shares of the Company's common stock shall be
delivered to Lender by the Company.
Section 5. Representations of Lender.
5.1 Lender's representations in this Agreement are complete and
accurate to the best of Lender's knowledge, and the Company may rely upon them.
5.2 Lender is able to bear the economic risk of an investment in the
Note, warrant and the underlying common stock (individually and collectively,
the "Securities") can afford the loss of the entire investment in the
Securities, and will, after making an investment in the Securities, have
sufficient means of providing for Lender's current needs and possible future
contingencies.
5.3 The Securities will not be sold by Lender without registration
under applicable securities acts or a proper exemption from such registration.
5.4 The Securities are being acquired for Lender's own account and
risk, for investment purposes, and not on behalf of any other person or with a
view to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act of 1933. Lender is aware that there are
substantial restrictions on the transferability of the Securities.
5.5 Lender has had access to any and all information concerning the
Company that Lender and its financial, tax and legal advisors required or
considered necessary to make a proper evaluation of this investment.
Specifically, Lender has had the opportunity to review the Company's annual
report on Form 10-KSB for the fiscal year ended March 31, 2004 and all
subsequent filings by the Company with the Securities and Exchange Commission
(the "Securities Filings"). Lender understands that the Company does not have
sufficient working capital to execute its business plan, the Company has
substantial debt obligations, the Company has not filed its 10-QSB for the
quarterly period ended September 30, 2004 so the information in the Securities
Filings is not current and that the Company has no agreements assuring the
Company that it will obtain additional funding based on any specific valuation
or at all. In making the decision to acquire the Securities, the Lender and its
advisers have relied solely upon the Securities Filings and their own
independent investigations, and fully understand that there are no guarantees,
assurances or promises in connection with any investment hereunder and
understand that the particular tax consequences arising from this investment in
the Company will depend upon its individual circumstances. Lender further
understands that no opinion is being given as to any securities or tax matters
involving the offering.
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5.6 Lender also understands and agrees that stop transfer instructions
relating to the Securities will be placed in the Company's transfer ledger, and
that the Securities will bear a legend in substantially the following form:
THIS SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF
SUCH ACT.
5.7 Lender knows that the Securities are offered and sold pursuant to
exemptions from registration under the Securities Act of 1933, and state
securities law based, in part, on these warranties and representations, which
are the very essence of this Agreement, and constitute a material part of the
bargained-for consideration without which this Agreement would not have been
executed.
5.8 Lender has the capacity to protect Lender's own interest in
connection with this transaction or has a pre-existing personal or business
relationship with the Company or one or more of its officers, directors or
controlling persons consisting of personal or business contacts of a nature and
duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
5.9 This Agreement when fully executed and delivered by the Company
will constitute a valid and legally binding obligation of Lender, enforceable in
accordance with its terms. Lender was not formed or organized for the specific
purpose of acquiring the Securities. In the event Lender is an entity, the
purchase of the Securities by Lender is a permissible investment in accordance
with Lender's Articles of Incorporation or other similar charter document, and
has been duly approved by all requisite action by the entity's owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the
Securities has all requisite authority to sign such documents on behalf of
Lender.
5.10 Lender represents that Lender is a sophisticated and an
"accredited investor" as defined under Rule 501 of Regulation D.
Section 6. Representations of the Company.
6.1. The Company is a duly organized and validly existing corporation
in good standing under the laws of Virginia.
6.2. The Company has all necessary corporate power and authority to
enter into and perform this Agreement. The Company has taken all corporate
action necessary to authorize this Agreement.
6.3. The execution and delivery of this Agreement, the performance by
the Company of its obligations under this Agreement, and the consummation of the
transactions provided for in this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company. This
Agreement will, as of the effective date, be duly executed and delivered by the
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Company and will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its respective terms, subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
6.4. The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the consummation of
the transactions contemplated hereby, do not and will not (a) violate or
conflict with or result in a breach of any provision of the Certificate of
Incorporation or Bylaws of the Company; (b) require any consent, approval or
notice under, or registration under or payment on account of, or conflict with,
or result in a violation or breach of, or constitute (with or without the giving
of notice or the lapse of time or both) a default (or give rise to any right of
termination, modification (including, in the case of leases, any change in the
amount or nature of the rent), cancellation or acceleration or result in the
creation or imposition of any lien upon the property of the Company) under, any
of the terms, conditions or provisions of any (i) note, bond, mortgage,
indenture, license, lease, agreement or other instrument or obligation to which
the Company is a party or by which any portion of its properties or assets may
be bound, or (ii) permit, license, approval, franchise or other governmental or
regulatory authorization held or used by or binding on the Company; (c) violate
or contravene any law, statute, rule or regulation, or any order, writ,
judgment, injunction, decree or award of any governmental authority binding on
the Company; or (d) require any action, consent, approval or authorization of,
or review by, or declaration, registration or filing with, or notice to, any
governmental authority, except such filings as may be required in connection
with applicable securities laws.
Section 7. Covenants.
7.1. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Company.
7.2. The Company will comply with all applicable statutes, regulations,
orders and restrictions of the United States, any state, municipality or other
governmental division thereof, and agencies and instrumentalities of the
foregoing, in respect of the conduct of its business and the ownership of its
property, except where such non-compliance will not have a material adverse
effect on the Company or its business.
7.3. The Company will file, when due, all federal, state and local tax
and information returns that it is required to file. The Company will pay when
due all taxes, interest and penalties, if any, reflected in such tax returns or
otherwise due and payable by it.
Section 8. Miscellaneous.
8.1. This Agreement, including any attached exhibits or schedules,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Agreement. All prior and contemporaneous agreements,
representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by
the Company and Lender.
8.2. Registration Rights. If at any time or from time to time following
the execution of this Agreement as set forth below, the Corporation shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders other than a registration relating
solely to employee benefit plans, then the Corporation shall:
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a. Promptly give written notice of such proposed Registration to
the Lender and offer Lender the right to request inclusion of
any of the Warrant Shares in the proposed Registration;
b. Lender shall have ten (10) days or such longer period as shall
be set forth in the notice from the receipt of the notice to
deliver to the Corporation a written request specifying the
number of Warrant Shares Lender intends to sell;
c. If the registration of which the Corporation gives notice is
for a registered public offering involving an underwriting,
the Corporation shall so advise the Lender. In such event, the
right of the Lender to registration pursuant to this Agreement
shall be conditioned upon Lender's participation in such
underwriting and the inclusion of its common stock received in
connection with this Agreement on the same terms and
conditions as the shares of common stock, if any, otherwise
being sold through underwriters under such registration.
d. These registration rights shall expire when the when the
common stock to which the piggy-back registration rights
relates can be sold under Rule 144, as promulgated under the
Securities Act of 1933.
8.3. The provisions of this Agreement shall be binding upon the
Company, its legal representatives, successors or assigns, and shall be for the
benefit of Lender and its respective successors and assigns.
8.4. The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument.
8.5. If any action is brought by either party in respect to its rights
under this Agreement, or to obtain an interpretation thereof, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs as
determined by the court.
8.6. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provision of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
8.7. The representations, warranties, acknowledgments and agreements
made by Lender shall survive the closing of the transaction described herein and
run in favor of, and for the benefit of, the Company. The representations,
warranties, acknowledgments and agreements made by the Company shall survive the
closing of the transaction described herein and run in favor of, and for the
benefit of, Lender.
8.8. The obligations of the parties hereto shall not be delegated or
assigned to any other party without the prior written consent of the other
party.
8.9. This Agreement shall be governed by the laws of the State of Utah.
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8.10. Any notices required or permitted hereunder shall be furnished in
writing to each party at such party's address appearing on the signature page
below or as such party may otherwise direct in writing actually received by the
other party.
8.11. The Company shall do, execute, acknowledge and deliver all such
further acts, deeds, assignments, transfers and assurances as Lender may
reasonably require to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
NOXSO CORPORATION TJ MANAGEMENT GROUP, LLC
EIN: 00-0000000 EIN: ____________________
By / s / By / s /
------------------------------ -----------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx Xxxxxx
Its: President Its: Managing Member
Address: Address:
NOXSO Corporation TJ Management Group, LLC
Attn: President Attn: Xxxxxx Xxxxxx
1065 South 000 Xxxx 0 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000 Xxxxx Xxxx, XX 00000
Phone: (000) 000-0000 Phone: ___________________
Fax: (000) 000-0000 Fax: _____________________
e-Fax: (000) 000-0000
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, UNLESS THE COMPANY HAS RECEIVED THE WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE, ASSIGNMENT OR TRANSFER
DOES NOT INVOLVE A TRANSACTION REQUIRING REGISTRATION OF THE ACT.
PROMISSORY NOTE
$150,000.00 December 21, 2004
Bountiful, Utah
FOR VALUE RECEIVED, NOXSO Corporation, a Virginia corporation (the
"Borrower"), hereby promises to pay to the order of TJ Management Group, LLC
(the "Lender") with a principal business address at 0 Xxxxxx Xxxx, Xxxxx Xxxx,
XX 00000, or such other place as the holder hereof shall designate, the
principal amount of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00 USD) or such
lesser amount as may be outstanding from time to time, in lawful money of the
United States in immediately available funds with accrued interest on the unpaid
principal hereof from the date hereof at the rate of two and one-half percent
(2.5%) a.p.r. Principal plus interest accrued thereon shall be due and payable
in a single payment on the earlier of (i) the six month anniversary of this
Note, or (ii) the closing of title to the Property described below .
The Borrower (i) waives presentment, demand, notice of demand, protest,
notice of protest, and notice of nonpayment and any other notice required to be
given under the law to the Borrower, in connection with the delivery,
acceptance, performance, default or enforcement of this Note, except for notice
and presentment upon conversion or at maturity of this Note and notice or
proposed transfer of this Note in accordance with the terms hereof; and (ii)
agrees that any failure to act or failure to exercise any right or remedy on the
part of the registered owner shall not in any way affect or impair the
obligations of the Borrower or be construed as a waiver by the owner of, or
otherwise affect, any of its rights under this Note.
No act, omission or delay by the Lender or course of dealing between
the Lender and the Borrower shall constitute a waiver of the rights and remedies
of the Lender hereunder. No single or partial waiver by the Lender of any
default or right or remedy which it may have shall operate as a waiver of any
other default, right or remedy or of the same default, right or remedy on a
future occasion.
No provision hereof shall be modified, altered or limited except by a
written instrument expressly referring to this Note and to such provision, and
executed by the Borrower and the Lender.
This Note shall be governed by and construed in accordance with the
laws of the State of Utah, without giving effect to the choice or conflict of
laws principles of that or any other jurisdiction.
This Note and all obligations evidenced hereby shall be binding upon
the successors and assigns of the Borrower and shall, together with the rights
and remedies of the Lender hereunder, inure to the benefit of the Lender, its
successors, permitted endorsees and assigns.
The Borrower, Rocky Point Partners, LLC and Flowerdale, LLC have
reached agreement whereby a security interest evidenced by a mortgage lien has
been simultaneously granted by Flowerdale, LLC , as a guarantor of this Note to
Lender to secure repayment of this Note in certain property acquired under the
Agreement dated November 1, 2004 located at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxx
(the "Property"), but title to the Property is still held by Flowerdale, LLC.
When title to the Property is transferred to the Borrower the Borrower will take
the Property subject to said security interest and payoff this Note out of the
proceeds of financing from the purchase of the Property.
In the event any payment under this Note is not made and the proceeds
received by Lender from foreclosure on the Property are insufficient to pay the
amounts owing hereunder (including reasonable collection costs and expenses),
then the undersigned agrees to pay the reasonable costs and expenses which may
be incurred by the Lender in connection with the enforcement of any of its
rights under this Note including court costs and reasonable attorney's fees,
whether incurred with or without suit or before or after judgment.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Borrower as of the date first written above.
BORROWER:
NOXSO CORPORATION
By:
------------------------
Xxxxxxx X. Xxxxxxxx
Its: President
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EXHIBIT B
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANTS HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY
BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS OR IF AN EXEMPTION
FROM SUCH REGISTRATION OR QUALIFICATION IS APPLICABLE.
NOXSO CORPORATION
Incorporated Under the Laws of the State of Virginia
50,000 Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK
PURCHASE WARRANTS
NOXSO CORPORATION, a Virginia corporation (the "Company"), for value
received, hereby certifies that ___________________, or registered assigns (the
"Holder"), is the registered owner of the above indicated number of Warrants.
One (1) Warrant entitles the Holder to purchase one (1) share of the Company's
common stock, $.01 par value (the "Common Stock"). The Common Stock issuable
upon an exercise of this Warrant is sometimes herein referred to as the "Warrant
Stock."
1. Purchase Price. The purchase price (the "Exercise Price") per share
for the Warrant Stock shall be $1.00 per share tendered to the Company in good
United States funds.
2. Rights to Exercise. The Holder shall have the right (but not the
obligation) to exercise the Warrant to receive the Warrant Stock (subject to
adjustment as hereinafter provided) at any time on or before the two-year
anniversary of the date of this Warrant.
3. Manner of Exercise. In order to exercise this Warrant, the Holder
shall surrender this Warrant certificate at the office of the Company, as set
forth below, or at such other address within the State of Utah as the Company
shall designate in writing, together with a duly executed exercise form in the
form attached hereto and simultaneous payment in full (in cash or by certified
or official bank or bank cashier's check payable to the order of the Company or
by offset of obligations then owed by the Company to the Holder) of the purchase
price for the Warrant Stock.
Upon surrender of this Warrant certificate in conformity with the
foregoing provisions, the Company shall promptly deliver to or upon the written
order of the Holder a stock certificate or certificates representing the Warrant
Stock.
4. Adjustments upon Certain Events.
4.1 Stock Splits, Stock Combinations and Certain Stock
Dividends. If the Company shall at any time subdivide or combine its outstanding
Common Stock, or declare a dividend in Common Stock or other securities of the
Company convertible into or exchangeable for Common Stock, a Warrant shall,
after such subdivision or combination or after the record date for such
dividend, be exercisable for that number of shares of Common Stock and other
securities of the Company that the Holder would have owned immediately after
such event with respect to the Common Stock and other securities for which a
Warrant may have been exercised immediately before such event had the Warrant
been exercised immediately before such event. Any adjustment under this Section
4.1 shall become effective at the close of business on the date the subdivision,
combination or dividend becomes effective.
4.2 Adjustment for Reorganization, Consolidation, Merger. In
case of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable upon exercise of a Warrant)
or in case the Company (or any such other corporation) shall merge into or with
or consolidate with another corporation or convey all or substantially all of
its assets to another corporation or enter into a business combination of any
form as a result of which the Common Stock or other securities receivable upon
exercise of a Warrant are converted into other stock or securities of the same
or another corporation, then and in each such case, the Holder of a Warrant,
upon exercise of the purchase right at any time after the consummation of such
reorganization, consolidation, merger, conveyance or combination, shall be
entitled to receive, in lieu of the shares of Common Stock or other securities
to which such Holder would have been entitled had he exercised the purchase
right immediately prior thereto, such stock and securities which such Holder
would have owned immediately after such event with respect to the shares Common
Stock and other securities for which a Warrant may have been exercised
immediately before such event had the Warrant been exercised immediately prior
to such event.
4.3 Notice. In each case of an adjustment in the Common Stock
or other securities receivable upon the exercise of a Warrant, the Company shall
promptly notify the Holder of such adjustment. Such notice shall set forth the
facts upon which such adjustment is based.
5. Loss, Theft, Destruction, or Mutilation. Upon receipt by the Company
of evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant and (in the case of loss,
theft, or destruction) of indemnity satisfactory to it (in the exercise of its
reasonable discretion), and (in the case of mutilation) upon surrender and
cancellation thereof, the Company will execute and deliver, in lieu thereof, a
new Warrant in the same form and tenor.
6. Reservation of Shares Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available out of its authorized shares,
solely for issuance upon the exercise of the Warrant, such shares of its Common
Stock and other securities as from time to time shall be issuable upon the
exercise of the Warrant.
7. Miscellaneous.
7.1 Governing Law. This Warrant shall be construed in
accordance with, and governed by the substantive laws of, the State of Utah.
7.2 Assignment. The benefit of this Warrant and of the Warrant
Stock represented hereby may be assigned and transferred by the Holder and its
assigns in accordance with any applicable securities laws and regulations;
however, the obligations of the Company and its successors may not be delegated
without the prior written consent of the Holder hereof. Subject to the
foregoing, this Warrant shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors, agents, heirs
and assigns.
7.3 Enforcement. In the event of a dispute between the parties
arising under this Warrant, the party prevailing in such dispute shall be
entitled to collect such party's costs and expenses from the other party,
including without limitation court costs and reasonable attorneys' fees.
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7.4 Notices. All notices, requests, consents and demands shall
be given to the Company at 0000 Xxxxx 000 Xxxx, Xxxxxxxxx, Xxxx 00000, and to
the Holder at the address shown on the records of the Company as provided by the
Holder. All notices, requests, consents and demands shall be given or made by
personal delivery, by confirmed air courier, by telecopy or by certified first
class mail, return receipt requested, postage prepaid, to the party addressed as
aforesaid. If sent by confirmed air courier, such notice shall be deemed to be
given on the earlier to occur of the date actually received by the addressee or
the business day on which delivery is made at such address as confirmed by the
air courier. If mailed, such notice shall be deemed to be given on the earlier
to occur of the date actually received by the addressee or the third business
day following the date upon which it is deposited in a first-class
postage-prepaid envelope in the United States mail addressed to such party's
business address. If given by telecopy, such notice shall be deemed to be given
on the business day actually received by the addressee.
7.5 Restrictive Legend. Each Warrant Certificate and each
certificate representing Common Stock issued upon exercise of a Warrant, unless
such Common Stock is then registered under the Securities Act of 1933, as
amended (the "Act"), shall bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES OR BLUE SKY LAWS OF ANY STATE AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE
SKY LAWS OR IF AN EXEMPTION FROM SUCH REGISTRATION OR
QUALIFICATION IS APPLICABLE.
7.6 Payment of Taxes. The Holder shall pay all documentary,
stamp or similar taxes and other government charges that may be imposed with
respect to the issuance, transfer or delivery of any Warrant Stock on exercise
of the Warrants. In the event the Warrant Stock are to be delivered in a name
other than the name of the Holder of the Warrant Certificate, no such delivery
shall be made unless the person requesting the same has paid the amount of any
such taxes or charges incident thereto.
7.7 Reduction in Exercise Price at Company's Option. The
Company's Board of Directors may, at its sole discretion, reduce the Exercise
Price of the Warrants in effect at any time either for the life of the Warrants
or any shorter period of time determined by the Company's Board of Directors.
The Company shall promptly notify the Registered Holders of any such reduction
in the Exercise Price.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed as of the 21st day of December, 2004.
NOXSO CORPORATION, a Virginia corporation
By: __________________________________
Its: President
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FORM OF ASSIGNMENT
(To be Executed by the Registered Holder if the Registered Holder
Desires to Assign Warrants Evidenced by the
Within Warrant Certificate)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns
and transfers unto _____________________________ _________________________
(_______) Warrants, evidenced by the within Warrant Certificate, and does hereby
irrevocably constitute and appoint _______________________________________
Attorney to transfer the said Warrants evidenced by the within Warrant
Certificates on the books of the Company, with full power of substitution.
Dated:____________________ ___________________________
Signature
Notice: The above signature must correspond with the name as written
upon the face of the Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever.
Signature Guaranteed: __________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
FORM OF ELECTION TO PURCHASE
(To be Executed by the Holder if Holder Desires to Exercise
Warrants Evidenced by the Warrant Certificate)
To NOXSO CORPORATION:
The undersigned hereby irrevocably elects to exercise
___________________________ (______) Warrants, evidenced by the within Warrant
Certificate for, and to purchase thereunder, ____________________________
(______) full shares of Common Stock issuable upon exercise of said Warrants and
delivery of $_________ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER
________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: _____________________ Signature: _________________________
NOTICE: The above signature must correspond with the name as written
upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change
whatsoever, or if signed by any other person the Form of
Assignment hereon must be duly executed and if the certificate
representing the shares or any Warrant Certificate
representing Warrants not exercised is to be registered in a
name other than that in which the within Warrant Certificate
is registered, the signature of the holder hereof must be
guaranteed.
Signature Guaranteed: ___________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
