Contract
EXHIBIT
4.3
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
SERIES
B
WARRANT TO PURCHASE
SHARES
OF
COMMON STOCK
OF
ASTRATA
GROUP INCORPORATED
Expires
December 19, 2012
| No.: W-B-07-__ |
Number
of Shares:
________
|
Date
of
Issuance: December 19, 2007
FOR
VALUE
RECEIVED, the undersigned, Astrata Group Incorporated, a Nevada corporation
(together with its successors and assigns, the "Issuer"), hereby
certifies that _______________ or its registered assigns is entitled to
subscribe for and purchase, during the Term (as hereinafter defined), up to
______________ (____________) shares (subject to adjustment as hereinafter
provided) of the duly authorized, validly issued, fully paid and non-assessable
Common Stock of the Issuer, at an exercise price per share equal to the Warrant
Price then in effect, subject, however, to the provisions and upon the terms
and
conditions hereinafter set forth. Capitalized terms used in this
Warrant and not otherwise defined herein shall have the respective meanings
specified in Section 9 hereof.
1.
Term. The
term of this Warrant shall commence on December 19, 2007 and shall expire at
6:00 p.m., eastern time, on December 19, 2012 (such period being the "Term").
2.
Method
of Exercise; Payment;
Issuance of New Warrant; Transfer and Exchange.
(a) Time
of
Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part during the Term.
(b) Method
of
Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise form
attached hereto duly executed) at the principal office of the Issuer, and by
the
payment to the Issuer of an amount of consideration therefor equal to the
Warrant Price in effect on the date of such exercise multiplied by the number
of
shares of Warrant Stock with respect to which this Warrant is then being
exercised, payable at such Holder's election (i) by certified or official bank
check or by wire transfer to an account designated by the Issuer, (ii) by
"cashless exercise" in accordance with the provisions of subsection (c) of
this
Section 2, but only when a registration statement under the Securities Act
providing for the resale of the Warrant Stock is not then in effect, or (iii)
by
a combination of the foregoing methods of payment selected by the Holder of
this
Warrant.
-1-
(c)
Cashless
Exercise. Notwithstanding any provisions herein to the
contrary and commencing eighteen (18) months following the Original Issue Date
if (i) the Per Share Market Value of one share of Common Stock is greater than
the Warrant Price (at the date of calculation as set forth below) and (ii)
a
registration statement under the Securities Act providing for the resale of
the
Warrant Stock is not then in effect by the date such registration statement
is
required to be effective pursuant to the Registration Rights Agreement (as
defined in the Purchase Agreement) or not effective at any time during the
Effectiveness Period (as defined in the Registration Rights Agreement) in
accordance with the terms of the Registration Rights Agreement, unless the
registration statement is not effective as a result of the Issuer exercising
its
rights under Section 3(n) of the Registration Rights Agreement, in lieu of
exercising this Warrant by payment of cash, the Holder may exercise this Warrant
by a cashless exercise and shall receive the number of shares of Common Stock
equal to an amount (as determined below) by surrender of this Warrant at the
principal office of the Issuer together with the properly endorsed Notice of
Exercise in which event the Issuer shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
X
= Y - (A)(Y)
B
|
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the Holder.
|
|
|
Y
=
|
the
number of shares of Common Stock purchasable upon exercise of all
of the
Warrant or, if only a portion of the Warrant is being exercised,
the
portion of the Warrant being exercised.
|
|
|
A
=
|
the
Warrant Price.
|
|
B
=
|
the
Per Share Market Value of one share of Common
Stock.
|
(d)
Issuance of Stock
Certificates. In the event of any exercise of this Warrant in
accordance with and subject to the terms and conditions hereof, certificates
for
the shares of Warrant Stock so purchased shall be dated the date of such
exercise and delivered to the Holder hereof within a reasonable time, not
exceeding three (3) Trading Days after such exercise (the “Delivery Date”) or,
at the request of the Holder (provided that a registration statement under
the
Securities Act providing for the resale of the Warrant Stock is then in effect
or that the shares of Warrant Stock are otherwise exempt from registration),
issued and delivered to the Depository Trust Company (“DTC”) account
on the
Holder’s behalf via the Deposit Withdrawal Agent Commission System (“DWAC”) within
a
reasonable time, not exceeding three (3) Trading Days after such exercise,
and
the Holder hereof shall be deemed for all purposes to be the holder of the
shares of Warrant Stock so purchased as of the date of such
exercise. Notwithstanding the foregoing to the contrary, the Issuer
or its transfer agent shall be obligated to issue and deliver the shares to
the
DTC on a holder’s behalf via DWAC only if such exercise is in connection with a
sale or other exemption from registration by which the shares may be issued
without a restrictive legend and the Issuer and its transfer agent are
participating in DTC through the DWAC system. The Holder shall
deliver this original Warrant, or an indemnification reasonably acceptable
to
the Issuer undertaking with respect to such Warrant in the case of its loss,
theft or destruction, at such time that this Warrant is fully
exercised. With respect to partial exercises of this Warrant, the
Issuer shall keep written records for the Holder of the number of shares of
Warrant Stock exercised as of each date of exercise.
-2-
(e)
Compensation for
Buy-In on Failure to Timely Deliver Certificates Upon
Exercise. In addition to any other rights available to the
Holder, if the Issuer fails to cause its transfer agent to transmit to the
Holder a certificate or certificates representing the Warrant Stock pursuant
to
an exercise on or before the Delivery Date, and if after such date the Holder
is
required by its broker to purchase (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of
the
Warrant Stock which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then
the Issuer shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of shares of Warrant Stock that the Issuer was
required to deliver to the Holder in connection with the exercise at issue
times
(B) the price at which the sell order giving rise to such purchase obligation
was executed, and (2) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of shares of Warrant Stock for which such
exercise was not honored or deliver to the Holder the number of shares of Common
Stock that would have been issued had the Issuer timely complied with its
exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of shares of Common Stock with
an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (1) of the immediately preceding sentence the Issuer shall be required
to
pay the Holder $1,000. The Holder shall provide the Issuer written notice
indicating the amounts payable to the Holder in respect of the Buy-In, together
with applicable confirmations and other evidence reasonably requested by the
Issuer. Nothing herein shall limit a Holder’s right to pursue any
other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with
respect to the Issuer’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of this Warrant as required pursuant to
the
terms hereof.
(f)
Transferability
of
Warrant. Subject to Section 2(h) hereof, this Warrant may be
transferred by a Holder, in whole or in part, without the consent of the
Issuer. If transferred pursuant to this paragraph, this Warrant may
be transferred on the books of the Issuer by the Holder hereof in person or
by
duly authorized attorney, upon surrender of this Warrant at the principal office
of the Issuer, properly endorsed (by the Holder executing an assignment in
the
form attached hereto) and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. This Warrant is
exchangeable at the principal office of the Issuer for Warrants to purchase
the
same aggregate number of shares of Warrant Stock, each new Warrant to represent
the right to purchase such number of shares of Warrant Stock as the Holder
hereof shall designate at the time of such exchange. All Warrants
issued on transfers or exchanges shall be dated the Original Issue Date and
shall be identical with this Warrant except as to the number of shares of
Warrant Stock issuable pursuant thereto.
-3-
(g)
Continuing Rights
of
Holder. The Issuer will, at the time of or at any time after
each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing the extent, if any, of its continuing obligation to
afford to such Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this Warrant,
provided that if
any
such Holder shall fail to make any such request, the failure shall not affect
the continuing obligation of the Issuer to afford such rights to such
Holder.
(h)
Compliance with
Securities Laws.
(i)
The Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and the shares of Warrant Stock to be issued upon exercise hereof are being
acquired solely for the Holder's own account and not as a nominee for any other
party, and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or
an
exemption from registration, under the Securities Act and any applicable state
securities laws.
(ii)
Except as provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
-4-
(iii)
The Issuer agrees to reissue this Warrant or certificates representing any
of
the Warrant Stock, without the legend set forth above if at such time, prior
to
making any transfer of any such securities, the Holder shall give written notice
to the Issuer describing the manner and terms of such transfer. Such proposed
transfer will not be effected until: (a) either (i) the Issuer has received
an
opinion of counsel reasonably satisfactory to the Issuer, to the effect that
the
registration of such securities under the Securities Act is not required in
connection with such proposed transfer, (ii) a registration statement under
the
Securities Act covering such proposed disposition has been filed by the Issuer
with the Securities and Exchange Commission and has become effective under
the
Securities Act, (iii) the Issuer has received other evidence reasonably
satisfactory to the Issuer that such registration and qualification under the
Securities Act and state securities laws are not required, or (iv) the Holder
provides the Issuer with reasonable assurances that such security can be sold
pursuant to Rule 144 under the Securities Act; and (b) either (i) the Issuer has
received an opinion of counsel reasonably satisfactory to the Issuer, to the
effect that registration or qualification under the securities or "blue sky"
laws of any state is not required in connection with such proposed disposition,
or (ii) compliance with applicable state securities or "blue sky" laws has
been
effected or a valid exemption exists with respect thereto. The Issuer will
respond to any such notice from a holder within three (3) Trading Days. In
the
case of any proposed transfer under this Section 2(h), the Issuer will use
reasonable efforts to comply with any such applicable state securities or "blue
sky" laws, but shall in no event be required, (x) to qualify to do business
in
any state where it is not then qualified, (y) to take any action that would
subject it to tax or to the general service of process in any state where it
is
not then subject, or (z) to comply with state securities or “blue sky” laws of
any state for which registration by coordination is unavailable to the
Issuer. The restrictions on transfer contained in this Section 2(h)
shall be in addition to, and not by way of limitation of, any other restrictions
on transfer contained in any other section of this Warrant. Whenever
a certificate representing the Warrant Stock is required to be issued to a
the
Holder without a legend, in lieu of delivering physical certificates
representing the Warrant Stock, the Issuer shall cause its transfer agent to
electronically transmit the Warrant Stock to the Holder by crediting the account
of the Holder or Holder's Prime Broker with DTC through its DWAC system (to
the
extent not inconsistent with any provisions of this Warrant or the Purchase
Agreement).
(i)
Accredited Investor
Status. In no event may the Holder exercise this Warrant in
whole or in part unless the Holder is an “accredited investor” as defined in
Regulation D under the Securities Act.
3.
Stock Fully Paid;
Reservation and Listing of Shares; Covenants.
(a)
Stock Fully
Paid. The Issuer represents, warrants, covenants and agrees
that all shares of Warrant Stock which may be issued upon the exercise of this
Warrant or otherwise hereunder will, when issued in accordance with the terms
of
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges created by or through the
Issuer. The Issuer further covenants and agrees that during the
period within which this Warrant may be exercised, the Issuer will at all times
have authorized and reserved for the purpose of the issuance upon exercise
of
this Warrant a number of authorized but unissued shares of Common Stock equal
to
at least one hundred fifty (150%) of the number of shares of Common Stock
issuable upon exercise of this Warrant without regard to any limitations on
exercise.
-5-
(b)
Reservation. If
any shares of Common Stock required to be reserved for issuance upon exercise
of
this Warrant or as otherwise provided hereunder require registration or
qualification with any Governmental Authority under any federal or state law
before such shares may be so issued, the Issuer will in good faith use its
best
efforts as expeditiously as possible at its expense to cause such shares to
be
duly registered or qualified. If the Issuer shall list any shares of
Common Stock on any securities exchange or market it will, at its expense,
list
thereon, and maintain and increase when necessary such listing, of, all shares
of Warrant Stock from time to time issued upon exercise of this Warrant or
as
otherwise provided hereunder (provided that such Warrant Stock has been
registered pursuant to a registration statement under the Securities Act then
in
effect), and, to the extent permissible under the applicable securities exchange
rules, all unissued shares of Warrant Stock which are at any time issuable
hereunder, so long as any shares of Common Stock shall be so
listed. The Issuer will also so list on each securities exchange or
market, and will maintain such listing of, any other securities which the Holder
of this Warrant shall be entitled to receive upon the exercise of this Warrant
if at the time any securities of the same class shall be listed on such
securities exchange or market by the Issuer.
(c)
Covenants. The
Issuer shall not by any action including, without limitation, amending the
Articles of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other action, avoid or seek to avoid the observance
or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the
Issuer will (i) not permit the par value, if any, of its Common Stock to exceed
the then effective Warrant Price, (ii) not amend or modify any provision of
the
Articles of Incorporation or by-laws of the Issuer in any manner that would
adversely affect the rights of the Holders of the Warrants, (iii) take all
such
action as may be reasonably necessary in order that the Issuer may validly
and
legally issue fully paid and nonassessable shares of Common Stock, free and
clear of any liens, claims, encumbrances and restrictions (other than as
provided herein) upon the exercise of this Warrant, and (iv) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be reasonably
necessary to enable the Issuer to perform its obligations under this
Warrant.
(d)
Loss, Theft,
Destruction of Warrants. Upon receipt of evidence satisfactory
to the Issuer of the ownership of and the loss, theft, destruction or mutilation
of any Warrant and, in the case of any such loss, theft or destruction, upon
receipt of indemnity or security satisfactory to the Issuer or, in the case
of
any such mutilation, upon surrender and cancellation of such Warrant, the Issuer
will make and deliver, in lieu of such lost, stolen, destroyed or mutilated
Warrant, a new Warrant of like tenor and representing the right to purchase
the
same number of shares of Common Stock.
(e)
Payment of Taxes .
The Issuer will pay any documentary stamp taxes attributable to the initial
issuance of the Warrant Stock issuable upon exercise of this Warrant; provided , however
, that the
Issuer shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issuance or delivery of any certificates
representing Warrant Stock in a name other than that of the Holder in respect
to
which such shares are issued.
-6-
4.
Adjustment of Warrant
Price. The price at which such shares of Warrant Stock may be
purchased upon exercise of this Warrant shall be subject to adjustment from
time
to time as set forth in this Section 4. The Issuer shall give the Holder notice
of any event described below which requires an adjustment pursuant to this
Section 4 in accordance with the notice provisions set forth in Section
5.
(a)
Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or
Sale.
(i) In
case the Issuer after
the Original Issue Date shall do any of the following (each, a "Triggering Event"):
(a) consolidate or merge with or into any other Person and the Issuer shall
not
be the continuing or surviving corporation of such consolidation or merger,
or
(b) permit any other Person to consolidate with or merge into the Issuer and
the
Issuer shall be the continuing or surviving Person but, in connection with
such
consolidation or merger, any Capital Stock of the Issuer shall be changed into
or exchanged for Securities of any other Person or cash or any other property,
or (c) transfer all or substantially all of its properties or assets to any
other Person, or (d) effect a capital reorganization or reclassification of
its
Capital Stock, then, and in the case of each such Triggering Event, proper
provision shall be made to the Warrant Price and the number of shares of Warrant
Stock that may be purchased upon exercise of this Warrant so that, upon the
basis and the terms and in the manner provided in this Warrant, the Holder
of
this Warrant shall be entitled upon the exercise hereof at any time after the
consummation of such Triggering Event, to the extent this Warrant is not
exercised prior to such Triggering Event, to receive at the Warrant Price as
adjusted to take into account the consummation of such Triggering Event, in
lieu
of the Common Stock issuable upon such exercise of this Warrant prior to such
Triggering Event, the Securities, cash and property to which such Holder would
have been entitled upon the consummation of such Triggering Event if such Holder
had exercised the rights represented by this Warrant immediately prior thereto
(including the right of a shareholder to elect the type of consideration it
will
receive upon a Triggering Event), subject to adjustments (subsequent to such
corporate action) as nearly equivalent as possible to the adjustments provided
for elsewhere in this Section 4; provided, however,
the Holder
at its option may elect to receive shares of Common Stock in an amount equal
to
eighty percent (80%) of the average VWAP of the Common Stock for the forty
(40)
Trading Days preceding the date of such Triggering Event. Immediately
upon the occurrence of a Triggering Event, the Issuer shall notify the Holder
in
writing of such Triggering Event and provide the calculations in determining
the
number of shares of Warrant Stock issuable upon exercise of the new warrant
and
the adjusted Warrant Price. Upon the Holder’s request, the continuing
or surviving corporation as a result of such Triggering Event shall issue to
the
Holder a new warrant of like tenor evidencing the right to purchase the adjusted
number of shares of Warrant Stock and the adjusted Warrant Price pursuant to
the
terms and provisions of this Section 4(a)(i). Notwithstanding the
foregoing to the contrary, this Section 4(a)(i) shall only apply if the
surviving entity pursuant to any such Triggering Event is a company that has
a
class of equity securities registered pursuant to the Securities Exchange Act
of
1934, as amended, and its common stock is listed or quoted on a national
securities exchange, national automated quotation system or the OTC Bulletin
Board. In the event that the surviving entity pursuant to any such
Triggering Event is not a public company that is registered pursuant to the
Securities Exchange Act of 1934, as amended, or its common stock is not listed
or quoted on a national securities exchange, national automated quotation system
or the OTC Bulletin Board, then the Holder shall have the right to demand that
the Issuer pay to the Holder an amount in cash equal to the value of this
Warrant calculated in accordance with the Black-Scholes formula.
-7-
(ii)
In the event that the Holder has elected not to exercise this Warrant prior
to
the consummation of a Triggering Event and has also elected not to receive
shares of Common Stock pursuant to the provisions of Section 4(a)(i) above,
so
long as the surviving entity pursuant to any Triggering Event is a company
that
has a class of equity securities registered pursuant to the Securities Exchange
Act of 1934, as amended, and its common stock is listed or quoted on a national
securities exchange, national automated quotation system or the OTC Bulletin
Board, the surviving entity and/or each Person (other than the Issuer) which
may
be required to deliver any Securities, cash or property upon the exercise of
this Warrant as provided herein shall assume, by written instrument delivered
to, and reasonably satisfactory to, the Holder of this Warrant, (A) the
obligations of the Issuer under this Warrant (and if the Issuer shall survive
the consummation of such Triggering Event, such assumption shall be in addition
to, and shall not release the Issuer from, any continuing obligations of the
Issuer under this Warrant) and (B) the obligation to deliver to such Holder
such
Securities, cash or property as, in accordance with the foregoing provisions
of
this subsection (a), such Holder shall be entitled to receive, and the surviving
entity and/or each such Person shall have similarly delivered to such Holder
an
opinion of counsel for the surviving entity and/or each such Person, which
counsel shall be reasonably satisfactory to such Holder, or in the alternative,
a written acknowledgement executed by the President or Chief Financial Officer
of the Issuer, stating that this Warrant shall thereafter continue in full
force
and effect and the terms hereof (including, without limitation, all of the
provisions of this subsection (a)) shall be applicable to the Securities, cash
or property which the surviving entity and/or each such Person may be required
to deliver upon any exercise of this Warrant or the exercise of any rights
pursuant hereto.
(b)
Stock Dividends,
Subdivisions and Combinations. If at any time the Issuer
shall:
(i) make or
issue or set a record date for the holders of the Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution of,
shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(iii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number
of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock
for
which this Warrant is exercisable immediately after such
adjustment.
-8-
(c)
Certain Other
Distributions. If at any time the Issuer shall make or issue
or set a record date for the holders of the Common Stock for the purpose of
entitling them to receive any dividend or other distribution
of:
(i)
cash,
(ii)
any evidences of its indebtedness, any shares of stock of any class or any
other
securities or property of any nature whatsoever (other than cash, Common Stock
Equivalents or Additional Shares of Common Stock), or
(iii)
any warrants or other rights to subscribe for or purchase any evidences of
its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash, Common Stock Equivalents
or
Additional Shares of Common Stock),
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
shall
be adjusted to equal the product of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such adjustment
multiplied by a fraction (A) the numerator of which shall be the Per Share
Market Value of Common Stock at the date of taking such record and (B) the
denominator of which shall be such Per Share Market Value minus the amount
allocable to one share of Common Stock of any such cash so distributable and
of
the fair value (as determined in good faith by the Board of Directors of the
Issuer and supported by an opinion from an investment banking firm mutually
agreed upon by the Issuer and the Holder) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or
other
subscription or purchase rights so distributable, and (2) the Warrant Price
then
in effect shall be adjusted to equal (A) the Warrant Price then in effect
multiplied by the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to the adjustment divided by (B) the number of
shares of Common Stock for which this Warrant is exercisable immediately after
such adjustment. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value
to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by the Issuer to the holders of its Common Stock
of such shares of such other class of stock within the meaning of this Section
4(c) and, if the outstanding shares of Common Stock shall be changed into a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination,
as
the case may be, of the outstanding shares of Common Stock within the meaning
of
Section 4(b).
-9-
(d)
Issuance of Additional
Shares of Common Stock. In the event the Issuer shall at any
time following the Original Issuance Date issue any Additional Shares of Common
Stock (otherwise than as provided in the foregoing subsections (b) through
(c)
of this Section 4), at a price per share less than the Warrant Price then in
effect or without consideration, then the Warrant Price upon each such issuance
shall be adjusted to the price equal to the consideration per share paid for
such Additional Shares of Common Stock.
(e)
Issuance of Common
Stock Equivalents. In the event the Issuer shall at any time
following the Original Issuance Date take a record of the holders of its Common
Stock for the purpose of entitling them to receive a distribution of, or shall
in any manner (whether directly or by assumption in a merger in which the Issuer
is the surviving corporation) issue or sell, any Common Stock Equivalents,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange shall be less than the Warrant Price in effect
immediately prior to the time of such issue or sale, or if, after any such
issuance of Common Stock Equivalents, the price per share for which Additional
Shares of Common Stock may be issuable thereafter is amended or adjusted, and
such price as so amended shall be less than the Warrant Price in effect at
the
time of such amendment or adjustment, then the Warrant Price then in effect
shall be adjusted as provided in Section 4(d). No further adjustments
of the number of shares of Common Stock for which this Warrant is exercisable
and the Warrant Price then in effect shall be made upon the actual issue of
such
Common Stock upon conversion or exchange of such Common Stock
Equivalents.
(f)
Other Provisions
applicable to Adjustments under this Section. The following
provisions shall be applicable to the making of adjustments of the number
of shares of Common Stock for which this Warrant is exercisable and the Warrant
Price then in effect provided for in this Section 4:
-10-
(i)
Computation of
Consideration. To the extent that any Additional Shares of
Common Stock or any Common Stock Equivalents (or any warrants or other rights
therefor) shall be issued for cash consideration, the consideration received
by
the Issuer therefor shall be the amount of the cash received by the Issuer
therefor, or, if such Additional Shares of Common Stock or Common Stock
Equivalents are offered by the Issuer for subscription, the subscription price,
or, if such Additional Shares of Common Stock or Common Stock Equivalents are
sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price (in any such case subtracting any
amounts paid or receivable for accrued interest or accrued dividends and without
taking into account any compensation, discounts or expenses paid or incurred
by
the Issuer for and in the underwriting of, or otherwise in connection with,
the
issuance thereof). In connection with any merger or consolidation in
which the Issuer is the surviving corporation (other than any consolidation
or
merger in which the previously outstanding shares of Common Stock of the Issuer
shall be changed to or exchanged for the stock or other securities of another
corporation), the amount of consideration therefore shall be, deemed to be
the
fair value, as determined reasonably and in good faith by the Board, of such
portion of the assets and business of the nonsurviving corporation as the Board
may determine to be attributable to such shares of Common Stock or Common Stock
Equivalents, as the case may be. The consideration for any Additional
Shares of Common Stock issuable pursuant to any warrants or other rights to
subscribe for or purchase the same shall be the consideration received by the
Issuer for issuing such warrants or other rights plus the additional
consideration payable to the Issuer upon exercise of such warrants or other
rights. The consideration for any Additional Shares of Common Stock
issuable pursuant to the terms of any Common Stock Equivalents shall be the
consideration received by the Issuer for issuing warrants or other rights
to subscribe for or purchase such Common Stock Equivalents, plus the
consideration paid or payable to the Issuer in respect of the subscription
for
or purchase of such Common Stock Equivalents, plus the additional consideration,
if any, payable to the Issuer upon the exercise of the right of conversion
or
exchange in such Common Stock Equivalents. In the event of any
consolidation or merger of the Issuer in which the Issuer is not the surviving
corporation or in which the previously outstanding shares of Common Stock of
the
Issuer shall be changed into or exchanged for the stock or other securities
of
another corporation, or in the event of any sale of all or substantially all
of
the assets of the Issuer for stock or other securities of any corporation,
the
Issuer shall be deemed to have issued a number of shares of its Common Stock
for
stock or securities or other property of the other corporation computed on
the
basis of the actual exchange ratio on which the transaction was predicated,
and
for a consideration equal to the fair market value on the date of such
transaction of all such stock or securities or other property of the other
corporation. In the event any consideration received by the Issuer
for any securities consists of property other than cash, the fair market value
thereof at the time of issuance or as otherwise applicable shall be as
determined in good faith by the Board. In the event Common Stock is
issued with other shares or securities or other assets of the Issuer for
consideration which covers both, the consideration computed as provided in
this
Section 4(f)(i) shall be allocated among such securities and assets as
determined in good faith by the Board.
(ii)
When Adjustments
to Be
Made. The adjustments required by this Section 4 shall be made
whenever and as often as any specified event requiring an adjustment shall
occur, except that any adjustment of the number of shares of Common Stock for
which this Warrant is exercisable that would otherwise be required may be
postponed (except in the case of a subdivision or combination of shares of
the
Common Stock, as provided for in Section 4(b)) up to, but not beyond the date
of
exercise if such adjustment either by itself or with other adjustments not
previously made adds or subtracts less than one percent (1%) of the shares
of
Common Stock for which this Warrant is exercisable immediately prior to the
making of such adjustment. Any adjustment representing a change of
less than such minimum amount (except as aforesaid) which is postponed shall
be
carried forward and made as soon as such adjustment, together with other
adjustments required by this Section 4 and not previously made, would result
in
a minimum adjustment or on the date of exercise. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close
of
business on the date of its occurrence.
(iii)
Fractional
Interests. In computing adjustments under this Section 4,
fractional interests in Common Stock shall be taken into account to the
nearest one one-hundredth (1/100th)
of a
share.
-11-
(iv)
When Adjustment
Not
Required. If the Issuer shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or
distribution or subscription or purchase rights and shall, thereafter and before
the distribution to stockholders thereof, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(g)
Form of Warrant
after
Adjustments. The form of this Warrant need not be changed
because of any adjustments in the Warrant Price or the number and kind of
Securities purchasable upon the exercise of this Warrant.
(h)
Escrow of Warrant
Stock. If after any property becomes distributable pursuant to
this Section 4 by reason of the taking of any record of the holders of Common
Stock, but prior to the occurrence of the event for which such record is taken,
and the Holder exercises this Warrant, any shares of Common Stock issuable
upon exercise by reason of such adjustment shall be deemed the last shares
of
Common Stock for which this Warrant is exercised (notwithstanding any other
provision to the contrary herein) and such shares or other property shall be
held in escrow for the Holder by the Issuer to be issued to the Holder upon
and
to the extent that the event actually takes place, upon payment of the current
Warrant Price. Notwithstanding any other provision to the contrary
herein, if the event for which such record was taken fails to occur or is
rescinded, then such escrowed shares shall be cancelled by the Issuer and
escrowed property returned.
5.
Notice of
Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 4 hereof (for purposes of this
Section 5, each an "adjustment"), the
Issuer shall cause its Chief Financial Officer to prepare and execute a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board made
any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such adjustment, and shall cause copies of such certificate
to
be delivered to the Holder of this Warrant promptly after each
adjustment. Any dispute between the Issuer and the Holder of this
Warrant with respect to the matters set forth in such certificate may at the
option of the Holder of this Warrant be submitted to a national or regional
accounting firm reasonably acceptable to the Issuer and the Holder, provided that the
Issuer shall have ten (10) days after receipt of notice from such Holder of
its
selection of such firm to object thereto, in which case such Holder shall select
another such firm and the Issuer shall have no such right of
objection. The firm selected by the Holder of this Warrant as
provided in the preceding sentence shall be instructed to deliver a written
opinion as to such matters to the Issuer and such Holder within thirty (30)
days
after submission to it of such dispute. Such opinion shall be final
and binding on the parties hereto. The costs and expenses of the
initial accounting firm shall be paid equally by the Issuer and the Holder
and,
in the case of an objection by the Issuer, the costs and expenses of the
subsequent accounting firm shall be paid in full by the Issuer.
-12-
6.
Fractional
Shares. No fractional shares of Warrant Stock will be issued
in connection with any exercise hereof, but in lieu of such fractional shares,
the Issuer shall round the number of shares to be issued upon exercise up to
the
nearest whole number of shares.
7.
Ownership Cap and
Exercise Restriction. Notwithstanding anything to the contrary
set forth in this Warrant, at no time may a Holder of this Warrant exercise
this
Warrant if the number of shares of Common Stock to be issued pursuant to such
exercise would exceed, when aggregated with all other shares of Common Stock
owned by such Holder and its affiliates at such time, the number of shares
of
Common Stock which would result in such Holder and its affiliates beneficially
owning (as determined in accordance with Section 13(d) of the Exchange Act
and
the rules thereunder) in excess of 9.99% of the then issued and
outstanding shares of Common Stock; provided, however,
that upon a
Holder of this Warrant providing the Issuer with sixty-one (61) days notice
(pursuant to Section 13 hereof) (the "Waiver Notice") that
such Holder would like to waive this Section 7 with regard to any or all shares
of Common Stock issuable upon exercise of this Warrant, this Section 7 will
be
of no force or effect with regard to all or a portion of the Warrant referenced
in the Waiver Notice; provided, further,
that during
the sixty-one (61) day period prior to the expiration of the Term, the Holder
may waive this Section 7 by providing a Waiver Notice at any time during such
sixty-one (61) day period; provided, further,
that any
Waiver Notice provided during the sixty-one (61) day period prior to expiration
of the Term will not be effective until the last day of the Term.
8.
Issuer's
Redemption
Option. If (A) the Per Share Market Value of the Common Stock
for any twenty (20) consecutive Trading Days equals or exceeds $5.00 per share
(as may be adjusted for any stock splits or combinations of the Common Stock)
and (B) the trading volume of the Common Stock for each Trading Day of such
twenty (20) Trading Day period equals or exceeds 50,000 shares of Common Stock,
the Issuer may, at any time thereafter upon twenty (20) Trading Days prior
written notice (the “Issuer Redemption
Notice”) to the Holder, redeem the unexercised portion of this Warrant in
cash at a price equal to the number of shares of Warrant Stock with respect
to
the unexercised portion of this Warrant multiplied by $0.0001 (the “Issuer Redemption
Price”); provided,
that,
in connection
with any redemption by the Issuer under this Section 8, (A) the registration
statement (the ‘Registration
Statement”) filed by the Issuer with the Securities and Exchange
Commission providing for the resale of the Warrant Stock and the shares of
Common Stock issuable upon conversion of the Series B Convertible Preferred
Stock issued pursuant to the Purchase Agreement is then in effect and has been
effective, without lapse or suspension of any kind, for a period of sixty (60)
consecutive calendar days, (B) trading in the Common Stock shall not have been
suspended by the Securities and Exchange Commission or the OTC Bulletin Board
(or other exchange or market on which the Common Stock is trading), (C) the
Issuer is in material compliance with the terms and conditions of this Warrant
and the other Transaction Documents (as defined in the Purchase Agreement)
and
(D) the Issuer is not in possession of any material non-public information;
provided, further,
that the
Registration Statement is in effect from the date of delivery of the Issuer
Redemption Notice until the date which is the later of (1) the date the Holder
exercises the Warrant pursuant to the Issuer Redemption Notice and (2) the
twentieth (20th)
Trading Day after the Holder receives the Issuer Redemption Notice (the "Early Termination
Date"). The rights and privileges granted pursuant to this
Warrant with respect to the shares of Warrant Stock subject to the Issuer
Redemption Notice (the "Redeemed Warrant
Shares") shall expire on the Early Termination Date if this Warrant is
not exercised with respect to such Redeemed Warrant Shares prior to such Early
Termination Date. The Issuer's Redemption Notice shall state the date
of redemption which date shall be the twenty-first (21st)
Trading Day after the Issuer has delivered the Issuer's Redemption Notice (the
"Issuer’s Redemption
Date"), the Issuer's Redemption Price and the number of shares to be
redeemed by the Issuer. The Issuer shall not send a Issuer's
Redemption Notice unless it has good and clear funds for a minimum of the amount
it intends to redeem in a bank account controlled by the Issuer. The
Issuer shall deliver the Issuer's Redemption Price to the Holder on the Issuer’s
Redemption Date. Not later than five (5) days after receipt of the
Issuer Redemption Price, Holder shall return to the Issuer for cancellation
the
original Warrant to be redeemed. If the Issuer fails to pay the Issuer’s
Redemption Price by the Issuer’s Redemption Date, the redemption will be
declared null and void. Notwithstanding anything
in the foregoing to the contrary, if the Holder may not exercise this Warrant
as
a result of the restriction contained in Section 7 hereof, the Issuer Redemption
Notice shall be deemed null and void and shall not be deemed effective until
the
date that the Holder may exercise this Warrant in accordance with Section 7
hereof.
-13-
9.
Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
"Additional
Shares of Common
Stock" means all shares of Common Stock issued by the Issuer after the
Original Issue Date, and all shares of Other Common, if any, issued by the
Issuer after the Original Issue Date, except: (i) securities issued (other
than
for cash) in connection with a merger, acquisition, or consolidation, (ii)
securities issued pursuant to the conversion or exercise of convertible or
exercisable securities issued or outstanding on or prior to the date of the
Purchase Agreement or issued pursuant to the Purchase Agreement (so long as
the
conversion or exercise price in such securities are not amended to lower such
price and/or adversely affect the Holders), (iii) the Warrant Stock, (iv)
securities issued in connection with bona fide strategic license agreements
or
other partnering arrangements so long as such issuances are not for the purpose
of raising capital, (v) Common Stock issued or the issuance or grants of options
to purchase Common Stock pursuant to the Issuer’s stock option plans and
employee stock purchase plans outstanding as they exist on the date of the
Purchase Agreement, and (vi) any warrants issued to the placement agent and
its
designees for the transactions contemplated by the Purchase
Agreement.
"Articles
of
Incorporation" means the Articles of Incorporation of the Issuer as in
effect on the Original Issue Date, and as hereafter from time to time amended,
modified, supplemented or restated in accordance with the terms hereof and
thereof and pursuant to applicable law.
“Board"
shall mean the
Board of Directors of the Issuer.
"Capital
Stock" means
and includes (i) any and all shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including,
without limitation, shares of preferred or preference stock, (ii) all
partnership interests (whether general or limited) in any Person which is a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
"Common
Stock" means
the Common Stock, $0.0001 par value per share, of the Issuer and any other
Capital Stock into which such stock may hereafter be changed.
"Common
Stock
Equivalent" means any Convertible Security or warrant, option or other
right to subscribe for or purchase any Additional Shares of Common Stock or
any
Convertible Security.
-14-
"Convertible
Securities" means evidences of Indebtedness, shares of Capital Stock or
other Securities which are or may be at any time convertible into or
exchangeable for Additional Shares of Common Stock. The term
"Convertible Security" means one of the Convertible Securities.
"Governmental
Authority" means any governmental, regulatory or self-regulatory entity,
department, body, official, authority, commission, board, agency or
instrumentality, whether federal, state or local, and whether domestic or
foreign.
"Holders"
mean the
Persons who shall from time to time own any Warrant. The term
"Holder" means one of the Holders.
"Independent
Appraiser" means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial statements
of the Issuer) that is regularly engaged in the business of appraising the
Capital Stock or assets of corporations or other entities as going concerns,
and
which is not affiliated with either the Issuer or the Holder of any
Warrant.
"Issuer"
means Astrata
Group Incorporated, a Nevada corporation, and its successors.
"Majority
Holders"
means at any time the Holders of Warrants exercisable for a majority of the
shares of Warrant Stock issuable under the Warrants at the time
outstanding.
"Original
Issue Date"
means December 19, 2007.
"OTC
Bulletin Board"
means the over-the-counter electronic bulletin board.
"Other
Common" means
any other Capital Stock of the Issuer of any class which shall be authorized
at
any time after the date of this Warrant (other than Common Stock) and which
shall have the right to participate in the distribution of earnings and assets
of the Issuer without limitation as to amount.
“Outstanding
Common
Stock” means, at any given time, the aggregate amount of outstanding
shares of Common Stock, assuming full exercise, conversion or exchange (as
applicable) of all options, warrants and other Securities which are convertible
into or exercisable or exchangeable for, and any right to subscribe for, shares
of Common Stock that are outstanding at such time.
-15-
"Person"
means an
individual, corporation, limited liability company, partnership, joint stock
company, trust, unincorporated organization, joint venture, Governmental
Authority or other entity of whatever nature.
"Per
Share Market
Value" means on any particular date (a) the last closing bid price per
share of the Common Stock on such date on the OTC Bulletin Board or a registered
national stock exchange on which the Common Stock is then listed, or if there
is
no such price on such date, then the closing price on such exchange or quotation
system on the date nearest preceding such date, or (b) if the Common Stock
is
not listed or traded then on the OTC Bulletin Board or any registered national
stock exchange, the last closing bid price for a share of Common Stock in the
over-the-counter market, as reported by the OTC Bulletin Board or by Pink Sheets
LLC or similar organization or agency succeeding to its functions of reporting
prices) at the close of business on such date, or (c) if the Common Stock is
not
then publicly traded the fair market value of a share of Common Stock as
determined by an Independent Appraiser selected in good faith by the Majority
Holders; provided, however,
that the
Issuer, after receipt of the determination by such Independent Appraiser, shall
have the right to select an additional Independent Appraiser, in which case,
the
fair market value shall be equal to the average of the determinations by each
such Independent Appraiser; and provided, further
that all
determinations of the Per Share Market Value shall be appropriately adjusted
for
any stock dividends, stock splits or other similar transactions during such
period. The determination of fair market value by an Independent
Appraiser shall be based upon the fair market value of the Issuer determined
on
a going concern basis as between a willing buyer and a willing seller and taking
into account all relevant factors determinative of value, and shall be final
and
binding on all parties. In determining the fair market value of any
shares of Common Stock, no consideration shall be given to any restrictions
on
transfer of the Common Stock imposed by agreement or by federal or state
securities laws, or to the existence or absence of, or any limitations on,
voting rights.
"Purchase
Agreement"
means the Series B Convertible Preferred Stock Purchase Agreement dated as
of
December 19, 2007, among the Issuer and the Purchasers.
"Purchasers"
means the
purchasers of the Series B Convertible Preferred Stock and the Warrants issued
by the Issuer pursuant to the Purchase Agreement.
"Securities"
means any
debt or equity securities of the Issuer, whether now or hereafter authorized,
any instrument convertible into or exchangeable for Securities or a Security,
and any option, warrant or other right to purchase or acquire any
Security. "Security" means one of the Securities.
-16-
"Securities
Act" means
the Securities Act of 1933, as amended, or any similar federal statute then
in
effect.
"Subsidiary"
means any
corporation at least 50% of whose outstanding Voting Stock shall at the time
be
owned directly or indirectly by the Issuer or by one or more of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Term"
has the meaning
specified in Section 1 hereof.
"Trading
Day" means
(a) a day on which the Common Stock is traded on the OTC Bulletin Board or
any
other exchange or trading venue on which the Common Stock may be principally
traded in the future, or (b) if the Common Stock is not traded on the OTC
Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by Pink Sheets LLC (or any similar
organization or agency succeeding its functions of reporting prices); provided, however,
that in the
event that the Common Stock is not listed or quoted as set forth in (a) or
(b)
hereof, then Trading Day shall mean any day except Saturday, Sunday and any
day
which shall be a legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other government action
to close.
"VWAP"
means, for any
date, the price determined by the first of the following clauses that applies:
(a) the daily volume weighted average price of the Common Stock for such date
(or the nearest preceding date) on the OTC Bulletin Board as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time)
to
4:02 p.m. (New York City time); (b) if the Common Stock is not then quoted
for
trading on the OTC Bulletin Board and if prices for the Common Stock are then
reported by Pink Sheets, LLC (or a similar organization or agency succeeding
to
its functions of reporting prices), the most recent bid price per share of
the
Common Stock so reported; or (c) in all other cases, the fair market value
of a
share of Common Stock as determined by an independent appraiser selected in
good
faith by the Majority Holders and reasonably acceptable to the
Issuer.
"Voting
Stock" means,
as applied to the Capital Stock of any corporation, Capital Stock of any class
or classes (however designated) having ordinary voting power for the election
of
a majority of the members of the Board of Directors (or other governing body)
of
such corporation, other than Capital Stock having such power only by reason
of
the happening of a contingency.
"Warrants"
means the
Warrants issued and sold pursuant to the Purchase Agreement, including, without
limitation, this Warrant, and any other warrants of like tenor issued in
substitution or exchange for any thereof pursuant to the provisions of Section
2(c), 2(d) or 2(e) hereof or of any of such other Warrants.
"Warrant
Price"
initially means $1.50, as such price may be adjusted from time to time as shall
result from the adjustments specified in this Warrant, including Section 4
hereto.
-17-
"Warrant
Share Number"
means at any time the aggregate number of shares of Warrant Stock which may
at
such time be purchased upon exercise of this Warrant, after giving effect to
all
prior adjustments and increases to such number made or required to be made
under
the terms hereof.
"Warrant
Stock" means
Common Stock issuable upon exercise of any Warrant or Warrants or otherwise
issuable pursuant to any Warrant or Warrants.
10.
Other
Notices. In case at any time:
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(A)
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the
Issuer shall make any distributions to the holders of Common Stock;
or
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(B)
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the
Issuer shall authorize the granting to all holders of its Common
Stock of
rights to subscribe for or purchase any shares of Capital Stock of
any
class or other rights; or
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(C)
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there
shall be any reclassification of the Capital Stock of the Issuer;
or
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(D)
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there
shall be any capital reorganization by the Issuer; or
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(E)
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there
shall be any (i) consolidation or merger involving the Issuer or
(ii)
sale, transfer or other disposition of all or substantially all of
the
Issuer's property, assets or business (except a merger or other
reorganization in which the Issuer shall be the surviving corporation
and
its shares of Capital Stock shall continue to be outstanding and
unchanged
and except a consolidation, merger, sale, transfer or other disposition
involving a wholly-owned Subsidiary); or
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(F)
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there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of the Issuer or any partial liquidation of the Issuer or distribution
to
holders of Common Stock;
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then,
in
each of such cases, the Issuer shall give written notice to the Holder of the
date on which (i) the books of the Issuer shall close or a record shall be
taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take
place. Such notice also shall specify the date as of which the
holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Common Stock for securities or other property deliverable
upon
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the action in question
and not less than ten (10) days prior to the record date or the date on which
the Issuer's transfer books are closed in respect thereto. This
Warrant entitles the Holder to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Common Stock.
-18-
11.
Amendment and
Waiver. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by
a
written instrument or written instruments executed by the Issuer and the
Majority Holders; provided, however,
that no such
amendment or waiver shall reduce the Warrant Share Number, increase the Warrant
Price, shorten the period during which this Warrant may be exercised or modify
any provision of this Section 11 without the consent of the Holder of this
Warrant. No consideration shall be offered or paid to any person to
amend or consent to a waiver or modification of any provision of this Warrant
unless the same consideration is also offered to all holders of the
Warrants.
12.
Governing Law;
Jurisdiction. This Warrant shall be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction. This
Warrant shall not be interpreted or construed with any presumption against
the
party causing this Warrant to be drafted. The Issuer and the Holder
agree that venue for any dispute arising under this Warrant will lie exclusively
in the state or federal courts located in New York County, New York, and the
parties irrevocably waive any right to raise forum non conveniens or any
other argument that New York is not the proper venue. The Issuer and
the Holder irrevocably consent to personal jurisdiction in the state and federal
courts of the state of New York. The Issuer and the Holder consent to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section 12
shall affect or limit any right to serve process in any other manner permitted
by law. The Issuer and the Holder hereby agree that the prevailing
party in any suit, action or proceeding arising out of or relating to this
Warrant or the Purchase Agreement, shall be entitled to reimbursement for
reasonable legal fees from the non-prevailing party. The parties
hereby waive all rights to a trial by jury.
13.
Notices. Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy or facsimile 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:
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If
to the Issuer:
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Astrata
Group Incorporated
|
000
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxx
Xxxx, XX 00000-0000
Attention:
Chief Executive Officer
Tel.
No.:
(000) 000-0000
Fax
No.: (000) 000-0000
-19-
with
copies (which copies
shall
not
constitute notice)
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to:
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Xxxxxx
& Xxxxxx, LLP
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000
Xxxxx 0 Xxxxx, Xxxxx
000
Xxxxxxxxx,
Xxx Xxxxxx
00000
Attention:
Xxxxxxx X. Xxxxxx,
Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
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If
to any Holder:
|
At
the address of such Holder set forth on Exhibit
A to
this Agreement, with copies to Holder’s counsel as set forth on Exhibit
A or as
specified in writing by such Holder with copies to:
|
with
copies (which copies
shall
not
constitute notice)
|
to:
|
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
|
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxxxxx X. Xxxxxxx
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
Any
party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
14.
Warrant
Agent. The Issuer may, by written notice to each Holder of
this Warrant, appoint an agent having an office in New York, New York for the
purpose of issuing shares of Warrant Stock on the exercise of this Warrant
pursuant to subsection (b) of Section 2 hereof, exchanging this Warrant pursuant
to subsection (d) of Section 2 hereof or replacing this Warrant pursuant to
subsection (d) of Section 3 hereof, 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 agent.
15.
Remedies. The
Issuer stipulates that the remedies at law of the Holder of this Warrant in
the
event of any default or threatened default by the Issuer in the performance
of
or compliance with any of the terms of this Warrant are not and will not be
adequate and that, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
16.
Successors and
Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of the
Issuer, the Holder hereof and (to the extent provided herein) the Holders of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
-20-
17.
Modification and
Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision
hereof is found to be unenforceable, then such provision shall be deemed
modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect
the
other provisions of this Warrant, but this Warrant shall be construed as if
such
unenforceable provision had never been contained herein.
18.
Headings. The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
19.
Registration Rights .
The Holder of this Warrant is entitled to the benefit of certain registration
rights with respect to the shares of Warrant Stock issuable upon the exercise
of
this Warrant pursuant to that certain Registration Rights Agreement, of even
date herewith, by and among the Company and Persons listed on Schedule I thereto
(the “ Registration
Rights Agreement”) and the registration rights with respect to the shares
of Warrant Stock issuable upon the exercise of this Warrant by any subsequent
Holder may only be assigned in accordance with the terms and provisions of
the
Registrations Rights Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-21-
IN
WITNESS WHEREOF, the Issuer has executed this Series B Warrant as of the day
and
year first above written.
|
ASTRATA
GROUP INCORPORATED
|
|||
|
|
By:
|
/s/ | |
|
Name:
Xxxxxx Xxxxxx Xxxxx
Title: Chief
Executive Officer
|
|||
-22-
EXERCISE
FORM
SERIES
B
WARRANT
ASTRATA
GROUP INCORPORATED
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Astrata Group
Incorporated covered by the within Warrant.
|
Dated:
_________________
|
Signature ___________________________ |
| Address _____________________ | |
| _____________________ |
Number
of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
The
undersigned is an “accredited investor” as defined in Regulation D under the
Securities Act of 1933, as amended.
The
undersigned intends that payment of the Warrant Price shall be made as (check
one):
Cash
Exercise_______
Cashless
Exercise_______
If
the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $________
by
certified or official bank check (or via wire transfer) to the Issuer in
accordance with the terms of the Warrant.
If
the
Holder has elected a Cashless Exercise, a certificate shall be issued to the
Holder for the number of shares equal to the whole number portion of the product
of the calculation set forth below, which is ___________. The
Company shall pay a cash adjustment in respect of the fractional portion of
the
product of the calculation set forth below in an amount equal to the product
of
the fractional portion of such product and the Per Share Market Value on the
date of exercise, which product is ____________.
X
= Y -
(A)(Y)
B
Where:
The
number of Ordinary Shares to be issued to the Holder __________________(“X”).
The
number of Ordinary Shares purchasable upon exercise of all of the Warrant or,
if
only a portion of the Warrant is being exercised, the portion of the Warrant
being exercised ___________________________ (“Y”).
-23-
The
Warrant Price ______________ (“A”).
The
Per
Share Market Value of one Ordinary Share _______________________
(“B”).
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and
does
irrevocably constitute and appoint _____________, attorney, to transfer the
said
Warrant on the books of the within named corporation.
|
Dated:
_________________
|
Signature ___________________________ |
| Address _____________________ | |
| _____________________ |
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
|
Dated:
_________________
|
Signature ___________________________ |
| Address _____________________ | |
| _____________________ |
FOR
USE
BY THE ISSUER ONLY:
This
Warrant No. W-___ canceled (or transferred or exchanged) this _____ day of
___________, _____, shares of Common Stock issued therefor in the name of
_______________, Warrant No. W-_____ issued for ____ shares of Common Stock
in
the name of _______________.
-24-
