THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
CELL POWER TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
September 23, 2005 500,000 Shares
FOR VALUE RECEIVED, CELL POWER TECHNOLOGIES, INC., a Florida
corporation (the "Company"), hereby grants to YESHIVA XXXXX XXXXXXX XXXXXX
(the "Holder") the right to purchase FIVE HUNDRED THOUSAND (500,000) fully
paid and nonassessable shares of the Company's common stock, no par value
(the "Common Stock"), until 5:00 P.M., Eastern Time, on September 22, 2007
(the "Expiration Date") at an initial exercise price (the "Exercise
Price") of $0.13 per share, subject to further adjustment as set forth
herein. This Warrant is being issued pursuant to the terms of that certain
Loan Agreement dated as of September 23, 2005 (the "Agreement") between
the Company and the Holder. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Agreement. This Warrant
was originally issued to the Holder on September 23, 2005 (the "Issue
Date").
1. EXERCISE OF WARRANTS.
(a) This Warrant is exercisable, in whole or in part at any time
and from time to time, commencing on the Issue Date; provided, however,
that this Warrant may not be exercised for fewer than 50,000 shares of
Common Stock or such lesser number of shares of Common Stock then issuable
upon the exercise in full of this Warrant. Each exercise shall be effected
by submitting to the Company (either by delivery to the Company or by
facsimile transmission as provided in Section 10 hereof) a completed and
duly executed notice of exercise substantially in the form attached to
this Warrant (a "Notice of Exercise"). The date a Notice of Exercise
regarding an exercise is delivered or faxed to the Company shall be the
"Exercise Date" with respect to such exercise. Each Notice of Exercise
shall be executed by the Holder and shall indicate (i) the number of
shares then being purchased pursuant to such exercise and (ii) whether the
Holder elects to pay the Exercise Price for the shares being purchased in
cash or to make a cashless exercise in accordance with Section 1(c)
hereof. Upon delivery of a duly executed Notice of Exercise, together with
appropriate payment of the Exercise Price, if any, for the shares of
Common Stock being purchased, the Holder shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased.
If an exercise represents the exercise in full of this Warrant, the Holder
shall tender this Warrant to the Company within five business days after
delivery of the applicable Notice of Exercise.
(b) If the Holder indicates on the Notice of Exercise that it has
elected to pay the Exercise Price for the shares of Common Stock for which
the Warrant is then being exercised in cash, the Exercise Price per share
of Common Stock for the shares then being exercised shall be payable in
cash or by certified or official bank check or by wire transfer of
immediately available funds.
(c) If a registration statement covering this Warrant or the
shares of Common Stock issuable hereunder is then in effect, the Holder
may elect to exercise this Warrant on a cashless basis by indicating on a
Notice of Exercise that it has elected to make a cashless exercise. Upon
such election, the Holder shall be entitled to receive the number of
shares of Common Stock equal to (w) the excess of the Current Market Value
(as defined below) over the total cash Exercise Price of the number of
shares for which this Warrant is being exercised, divided by (x) the
Market Price per share of the Common Stock as of the trading day
immediately prior to the Exercise Date. For the purposes of this Warrant,
the terms (y) "Current Market Value" shall be an amount equal to the
Market Price per share of the Common Stock as of the trading day
immediately prior to the Exercise Date multiplied by the number of shares
of Common Stock specified in such Notice of Exercise Form, and (z) "Market
Price" per share of the Common Stock as of any date shall be the closing
price of the Common Stock on the OTC Bulletin Board or the other principal
market on which the Common Stock is listed for trading as of that date.
(d) The Holder shall be deemed to be the holder of the shares of
Common Stock issuable to it in accordance with the provisions hereof upon
any exercise of this Warrant as of the close of business on the applicable
Exercise Date.
2. RESERVATION OF SHARES. The Company hereby agrees that at all
times during the term of this Warrant there shall be reserved for issuance
upon exercise of this Warrant one hundred percent (100%) of the number of
shares of Common Stock for which this Warrant may then be exercised (the
"Warrant Shares").
3. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant, and (in the case of loss, theft or destruction) receipt
of reasonably satisfactory indemnification, and (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company
will execute and deliver to the Holder a new Warrant of like tenor and
date and any such lost, stolen, destroyed or mutilated Warrant shall
thereupon become void.
4. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof,
be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in
this Warrant and are not enforceable against the Company except to the
extent set forth herein.
5. STOCK DIVIDENDS, RECLASSIFICATIONS, REORGANIZATION,
ANTI-DILUTION PROVISIONS, ETC.
5.1 If prior to the expiration of this Warrant by exercise or by
its terms the Company shall issue any shares of its Common Stock as a
stock dividend or subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of such cases, the
Exercise Price in effect at the time of such action shall be
proportionately reduced and the number of Warrant Shares purchasable at
that time shall be proportionately increased; and, conversely, in the
event the Company shall contract the number of outstanding shares of
Common Stock by combining such shares into a smaller number of shares,
then, in such case, the Exercise Price per share of the Warrant Shares
purchasable pursuant to this Warrant shall be proportionately increased.
Any dividend paid or distributed upon the Common Stock in stock of any
other class of securities convertible into shares of Common Stock shall be
treated as a dividend paid in Common Stock to the extent that shares of
Common Stock are issuable upon conversion thereof.
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5.2 In the event of any consolidation or merger of the Company
with or into another corporation (other than a merger or consolidation in
which the Company is the surviving or the continuing corporation) or in
the case of any sale or conveyance to another corporation or other entity
of the property, assets or business of the Company as an entirety or
substantially as an entirety, in any such case, the Company or such
successor or purchasing corporation or entity, as the case may be, shall
(i) execute with the Holder an agreement that the Holder shall have the
right thereafter to receive upon the exercise of the Warrant the kind and
amount of shares and/or other securities or other property which he would
have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had the Warrant been exercised
immediately prior to such action, (ii) make effective provision in its
certificate of its incorporation or otherwise, if necessary, in order to
effect such agreement, and (iii) set aside or reserve for the benefit of
the Holder, the stock, securities, property and cash to which the Holder
would be entitled to upon exercise of this Warrant.
5.3 In the event of any reclassification of the Common Stock
(other than a change in par value or from no par value to a specific par
value, or as a result of a subdivision or combination, including any
change in the shares into two or more classes or series of shares) or a
recapitalization of the Company, the Holder shall have the right
thereafter to receive upon exercise of this Warrant solely the kind and
amount of shares of stock and other securities, property, cash or
combination thereof receivable upon such reclassification or
recapitalization by a holder of the number of shares Common Stock for
which this Warrant might have been exercised immediately prior to such
reclassification or recapitalization.
5.4 Upon the occurrence of each event requiring an adjustment of
the Exercise Price and the number of Warrant Shares purchasable at such
adjusted Exercise Price by reason of such event in accordance with the
provision of this Section 5, the Company shall compute the adjusted
Exercise Price and the adjusted number of Warrant Shares purchasable at
such adjusted Exercise Price by reason of such event in accordance with
the provisions of this Section 5 and shall prepare a certificate setting
forth such adjusted Exercise Price and the adjusted number of Warrant
Shares and showing in reasonable detail the facts upon which such
determination is made. The Company shall deliver to the Holder a copy of
such certificate and thereafter such certificate shall be conclusive and
shall be binding upon the Holder unless contested by the Holder in a
written notice furnished to the Company within 10 days of the receipt
thereof setting forth in reasonable detail the basis of such contention.
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6. REPRESENTATIONS AND WARRANTIES. The Holder (i) represents,
warrants, covenants and agrees that the Warrant and the underlying Warrant
Shares are being acquired by the Holder for the Holder's own account, for
investment purposes only, and not with a view to or for sale in connection
with any distribution thereof or with any present intention of selling or
distributing all or any part of the Warrant or the underlying Warrant
Shares thereof; and (ii) acknowledges that, as of the date hereof, it has
been given a full opportunity to ask questions of and to receive answers
from the Company concerning this Warrant and the Warrant Shares and the
business of the Company and to obtain such information as it desired in
order to evaluate the acquisition of this Warrant and the Warrant Shares,
and all questions have been answered to its full satisfaction.
7. TRANSFER TO COMPLY WITH THE SECURITIES ACT; REGISTRATION
RIGHTS.
7.1 TRANSFER. Neither this Warrant nor any of the Warrant Shares
or any other security issued or issuable upon exercise of this Warrant may
be sold, transferred, pledged or hypothecated in the absence of an
effective registration statement under the Securities Act of 1933, as
amended, (the "Act") relating to such security or an opinion of counsel
satisfactory to the Company that registration is not required under the
Act. Each certificate for the Warrant, the Warrant Shares and any other
security issued or issuable upon exercise of this Warrant shall contain a
legend on the face thereof, in form and substance satisfactory to counsel
for the Company, setting forth the restrictions on transfer contained in
this Section.
7.2 REGISTRATION RIGHTS. If the Company participates (whether
voluntarily or by reason of an obligation to a third party) in the
registration of any shares of the Company's stock (other than a
registration on Form S-8 or on Form S-4), the Company shall give written
notice thereof to the Holder and the Holder shall have the right,
exercisable within ten (10) business days after receipt of such notice, to
demand inclusion in such registration statement of all or any portion of
the shares of Common Stock issued or issuable upon exercise of this
Warrant ("Registrable Shares"). If the Holder exercises such election, the
Registrable Shares so designated shall be included in the registration
statement at no cost or expense to the Holder. The Holder's rights under
this Section 7.2 shall expire at such time as the Holder can sell all of
the Registrable Shares under Rule 144 under the Act without volume or
other restrictions or limit.
8. GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of New York without giving effect to the
conflict of laws principles thereof. Each of the parties consents to the
exclusive jurisdiction of the federal courts whose districts encompass any
part of the County of New York or the state courts of the State of New
York sitting in the County of New York in connection with any dispute
arising under this Warrant and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum
non conveniens, to the bringing of any such proceeding in such
jurisdictions.
9. JURY TRIAL WAIVER. The Company and the Holder hereby waive a
trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other in respect of any matter arising
out or in connection with this Warrant.
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10. NOTICES. Any notice required or permitted hereunder shall be
given in manner provided in Section 8 of the Agreement, the terms of which
are incorporated herein by reference.
11. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This Warrant may
be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the
parties hereto with respect to the subject matter hereof and thereof and
there are no representations, warranties, agreements or understandings
other than expressly contained herein and therein.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
executed as of the 23rd day of September, 2005.
CELL POWER TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
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NOTICE OF EXERCISE OF WARRANT
To: Cell Power Technologies, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Fax: [ ]
Attn: President
The Holder hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of September 23, 2005, to purchase
_____________ shares of the common stock, no par value, of Cell Power
Technologies, Inc. and tenders herewith payment in accordance with Section
1 of said Warrant.
CASH: $________________________= (Exercise Price x Number of Shares
Purchased)
Payment is being made by:
___ enclosed check
___ wire transfer
CASHLESS EXERCISE
Net number of Warrant Shares to be issued to Holder: __________________*
* Current Market Value - (Exercise Price x Number of Shares Purchased)
--------------------------------------------------------------------
Market Price per share of Common Stock
Market Price per share of Common Stock ("MP") = $______________
Current Market Value (MP x Number of Shares Purchased) = $______________
As contemplated by the Warrant, this Notice of Conversion is being
delivered or sent by facsimile to the President of the Company at the
address or number indicated above.
If this Notice of Exercise represents the exercise in full of the number
of shares for which the Warrant may be issued, the Holder either (1) has
previously surrendered the Warrant to the Company or (2) will surrender
(or cause to be surrendered) the Warrant to the Company at the address
indicated above by express courier within five (5) business days after
delivery or facsimile transmission of this Notice of Exercise.
The certificates representing the Shares should be transmitted by the
Company to the Holder via express courier or by electronic transfer after
receipt of this Notice of Exercise (by facsimile transmission or
otherwise) to:
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Holder has executed this Notice of Exercise
as of the date written below.
By: ___________________________
Name:
Title:
Date:
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