EXHIBIT 99.6
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
THE EXERCISE THEREOF MAY BE SUBJECT TO A HOLD PERIOD AND RESALE RESTRICTIONS
UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION. UNLESS PERMITTED UNDER
APPLICABLE CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES SHALL
NOT TRADE THE SECURITIES BEFORE DECEMBER 29,2003.
THIS WARRANT MAY NOT BE EXERCISED UNLESS SUCH EXERCISE IS REGISTERED UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR IS EXEMPT FROM
REGISTRATION THEREUNDER.
COMMON SHARES PURCHASE WARRANT
To Purchase 2,272,727 Common Shares of
CRYSTALLEX INTERNATIONAL CORPORATION
THIS COMMON SHARES PURCHASE WARRANT CERTIFIES that, for value
received, RIVERVIEW GROUP LLC (the "Holder"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after the AMEX Event (as defined) (the "Initial Exercise
Date") and on or prior to the earlier of (i) the close of business on the third
annual anniversary of the Initial Exercise Date and (ii) such time as the holder
of the Special Purchase Warrant issued on even date herewith receives the Put
Consideration (as defined in such Special Purchase Warrant) (such earlier date
being the "Termination Date") but not thereafter, to subscribe for and purchase
from Crystallex International Corporation, a corporation incorporated in Canada
(the "Company"), up to 2,272,727 common shares (subject to adjustment as
provided herein) (the "Purchase Warrant Shares"), no par value per share, of the
Company (the "Common Shares"). The purchase price of one Purchase Warrant Share
(the "Exercise Price") under this Warrant shall be $2.75, subject to adjustment
hereunder. The Exercise Price and the number of Purchase Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as provided
herein. CAPITALIZED TERMS USED AND NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE
MEANINGS SET FORTH IN THAT CERTAIN SECURITIES PURCHASE AGREEMENT (THE "PURCHASE
AGREEMENT"), DATED AUGUST 28, 2003, BETWEEN THE COMPANY AND THE PURCHASERS
SIGNATORY THERETO.
1. Title to Warrant. Prior to the Termination Date and subject
to compliance with applicable laws and Section 7 of this Warrant, this Warrant
and all rights hereunder are transferable, in whole or in part at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all
Purchase Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights
represented by this Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
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of the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3. Exercise of Warrant.
(a) Except as provided in Sections 3(f) and 4 herein,
exercise of the purchase rights represented by this Warrant may be made
at any time or times on or after the Initial Exercise Date and on or
before the Termination Date by the surrender of this Warrant and the
Notice of Exercise Form annexed hereto duly executed, at the office of
the Company (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the address
of such Holder appearing on the books of the Company) and upon payment
of the Exercise Price of the shares thereby purchased by wire transfer
or cashier's check drawn on a United States bank or by means of a
cashless exercise pursuant to Section 3(d), the Holder shall be
entitled to receive a certificate for the number of Purchase Warrant
Shares so purchased. Certificates for shares purchased hereunder shall
be delivered to the Holder within three (3) Trading Days after the date
on which this Warrant shall have been exercised as aforesaid. This
Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the Holder or any
other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised by payment to the Company of the
Exercise Price and all taxes required to be paid by the Holder, if any,
pursuant to Section 5 prior to the issuance of such shares, have been
paid. If the Company fails to deliver to the Holder a certificate or
certificates representing the Purchase Warrant Shares pursuant to this
Section 3(a) by the close of business on the third Trading Day after
the date of exercise, then the Holder will have the right to rescind
such exercise. In addition to any other rights available to the Holder,
if the Company fails to deliver to the Holder a certificate or
certificates representing the Purchase Warrant Shares pursuant to an
exercise by the close of business on the third Trading Day after the
date of exercise, and if after such third Trading Day the Holder is
required by its broker to purchase (in an open market transaction or
otherwise) Common Shares to deliver in satisfaction of a sale by the
Holder of the Purchase Warrant Shares which the Holder anticipated
receiving upon such exercise (a "Buy-In"), then the Company 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 Common
Shares so purchased exceeds (y) the amount obtained by multiplying (A)
the number of Purchase Warrant Shares that the Company 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 Purchase
Warrant Shares for which such exercise was not honored or deliver to
the Holder the number of Common Shares that would have been issued had
the Company timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Common Shares having a
total purchase price of $11,000 to cover a Buy-In with respect to an
attempted exercise of Common Shares with an aggregate sale price giving
rise to such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Company shall be required to pay the
Holder $1,000. The Holder shall provide the Company 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 Company. Nothing herein shall limit a Xxxxxx'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 Company's failure to
timely deliver certificates representing Common Shares upon exercise of
the Warrant as required pursuant to the terms hereof.
(b) If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the certificate or
certificates representing Purchase Warrant Shares, deliver to Holder a
new Warrant evidencing the rights of Holder to purchase the unpurchased
Purchase Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
(c) The Company shall not effect any exercise of this
Warrant, and the Holder shall not have the right to exercise any
portion of this Warrant, pursuant to
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Section 3(a) or otherwise, to the extent that after giving effect to
such issuance after exercise, the Holder (together with the Holder's
affiliates), as set forth on the applicable Notice of Exercise, would
beneficially own in excess of 9.99% of the number of Common Shares
outstanding immediately after giving effect to such issuance. For
purposes of the foregoing sentence, the number of Common Shares
beneficially owned by the Holder and its affiliates shall include the
number of Common Shares issuable upon exercise of this Warrant with
respect to which the determination of such sentence is being made, but
shall exclude the number of Common Shares which would be issuable upon
(A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its affiliates and (B)
exercise or conversion of the unexercised or nonconverted portion of
any other securities of the Company (including, without limitation, any
other Debentures or Warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its affiliates. Except as set forth in
the preceding sentence, for purposes of this Section 3(c), beneficial
ownership shall be calculated in accordance with Section 13(d) of the
Exchange Act. To the extent that the limitation contained in this
Section 3(c) applies, the determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder) and
of which a portion of this Warrant is exercisable shall be in the sole
discretion of such Xxxxxx, and the submission of a Notice of Exercise
shall be deemed to be such Holder's determination of whether this
Warrant is exercisable (in relation to other securities owned by such
Holder) and of which portion of this Warrant is exercisable, in each
case subject to such aggregate percentage limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such
determination. For purposes of this Section 3(c), in determining the
number of outstanding Common Shares, the Holder may rely on the number
of outstanding Common Shares as reflected in (x) the Company's most
recent Form 20-F, (y) a more recent public announcement by the Company
or (z) any other notice by the Company or the Company's Transfer Agent
setting forth the number of Common Shares outstanding. Upon the written
or oral request of the Holder, the Company shall within two Trading
Days confirm orally and in writing to the Holder the number of Common
Shares then outstanding. In any case, the number of outstanding Common
Shares shall be determined after giving effect to the conversion or
exercise of securities of the Company, including this Warrant, by the
Holder or its affiliates since the date as of which such number of
outstanding Common Shares was reported. The provisions of this Section
3(c) may be waived by the Holder upon, at the election of the Holder,
not less than 61 days' prior notice to the Company, and the provisions
of this Section 3(c) shall continue to apply until such 61st day (or
such later date, as determined by the Holder, as may be specified in
such notice of waiver).
(d) If, but only if, at any time after one year from
the date of issuance of this Warrant there is no effective Registration
Statement registering the resale of the Purchase Warrant Shares by the
Holder, this Warrant may also be exercised at such time by means of a
"cashless exercise" in which the Holder shall be entitled to receive a
certificate for the number of Purchase Warrant Shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the Closing Price on the Trading Day preceding the date
of such election;
(B) = the Exercise Price of the Warrants, as adjusted; and
(X) = the number of Purchase Warrant Shares issuable upon
exercise of the Warrants in accordance with the terms of
this Warrant.
(e) Notwithstanding anything to the contrary
contained herein, this Warrant may not be exercised, and the Purchase
Warrant Shares may not be issued, unless such exercise is registered
under the Securities Act or is made pursuant to an applicable exemption
from registration under the Securities Act and applicable state
securities laws.
4. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall
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pay a cash adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for
Purchase Warrant Shares shall be made without charge to the Holder for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Holder or in such name or
names as may be directed by the Holder; provided, however, that in the event
certificates for Purchase Warrant Shares are to be issued in a name other than
the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder;
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its
stockholder books or records in any manner which prevents the timely exercise of
this Warrant, pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable
securities laws and the conditions set forth in Sections 1 and 7(e)
hereof and to the provisions of Section 4.1 of the Purchase Agreement,
this Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of this Warrant at the principal office of the
Company, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder
or its agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned, may be
exercised by a new holder for the purchase of Purchase Warrant Shares
without having a new Warrant issued.
(b) This Warrant may be divided or combined with
other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section
7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at
its own expense (other than transfer taxes) the new Warrant or Warrants
under this Section 7.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of
the Warrants.
(e) If, at the time of the surrender of this Warrant
in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws,
(ii) that the holder or transferee execute and deliver to the Company
an investment letter in form and substance acceptable to the Company
and (iii) that the transferee be an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does
not entitle the Holder to any voting rights or other rights as a shareholder of
the Company prior to the exercise hereof. Upon the surrender of this Warrant and
the payment of the aggregate Exercise Price (or
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by means of a cashless exercise), the Purchase Warrant Shares so purchased shall
be and be deemed to be issued to such Holder as the record owner of such shares
as of the close of business on the later of the date of such surrender or
payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Purchase Warrant Shares, and in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it (which, in the case of the Warrant, shall not include the posting of any
bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein is not a Business Day, then such action may be taken
or such right may be exercised on the next succeeding day that is a Business
Day.
11. Adjustments of Exercise Price and Number of Purchase
Warrant Shares; Stock Splits, etc. The number and kind of securities purchasable
upon the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time upon the happening of any of the following. In case
the Company shall (i) pay a dividend in Common Shares or make a distribution in
Common Shares to holders of its outstanding Common Shares, (ii) subdivide its
outstanding Common Shares into a greater number of shares, (iii) combine its
outstanding Common Shares into a smaller number of Common Shares, or (iv) issue
any shares of its capital stock in a reclassification of the Common Shares, then
the number of Purchase Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Purchase Warrant Shares or other securities of
the Company which it would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of the kind
and number of Purchase Warrant Shares or other securities of the Company which
are purchasable hereunder, the Holder shall thereafter be entitled to purchase
the number of Purchase Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Purchase Warrant Share or other security
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Purchase Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of Purchase
Warrant Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
12. Reorganization, Reclassification, Merger, Amalgamation,
Consolidation or Disposition of Assets. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate, merge, or amalgamate with or
into another corporation (where the Company is not the surviving corporation or
where there is a change in or distribution with respect to the Common Shares of
the Company), or sell, transfer or otherwise dispose of all or substantially all
its property, assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger, amalgamation,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of Common Shares of the Company, then the Holder shall have the
right thereafter to receive, at the option of the Holder, (a) upon exercise of
this Warrant, the number of Common Shares of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other
Property receivable upon or as a result of such reorganization,
reclassification, merger, amalgamation, consolidation or disposition of assets
by a Holder of the number of Common Shares for which this Warrant is exercisable
immediately prior to such event, or (b) cash equal to the value of this Warrant
as determined by multiplying the number of Purchase Warrant Shares then issuable
upon exercise of this Warrant by the then Exercise Price. In case of any such
reorganization, reclassification, merger, amalgamation, consolidation or
disposition of assets, the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and performance
of each and every covenant and condition of this Warrant to be performed and
observed by the Company and all the obligations and liabilities hereunder,
subject
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to such modifications as may be deemed appropriate (as determined in good faith
by resolution of the Board of Directors of the Company) in order to provide for
adjustments of Purchase Warrant Shares for which this Warrant is exercisable
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 12. For purposes of this Section 12, "common stock of the
successor or acquiring corporation" shall include stock of such corporation of
any class which is not preferred as to dividends or assets over any other class
of stock of such corporation and which is not subject to redemption and shall
also include any evidences of indebtedness, shares of stock or other securities
which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 12 shall similarly
apply to successive reorganizations, reclassifications, mergers, amalgamations,
consolidations or disposition of assets.
13. Notice of Adjustment. Whenever the number of Purchase
Warrant Shares or number or kind of securities or other property purchasable
upon the exercise of this Warrant or the Exercise Price is adjusted, as herein
provided, the Company shall give notice thereof to the Holder, which notice
shall state the number of Purchase Warrant Shares (and other securities or
property) purchasable upon the exercise of this Warrant and the Exercise Price
of such Purchase Warrant Shares (and other securities or property) after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
14. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of
its Common Shares for the purpose of entitling them to receive a
dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any
class or any other securities or property, or to receive any other
right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock
of the Company or any consolidation or merger or amalgamation of the
Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to,
another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 20 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
amalgamation, consolidation, sale, transfer, disposition, liquidation or winding
up, and (ii) in the case of any such reorganization, reclassification, merger,
amalgamation, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up, at least 20 days' prior written notice of the date
when the same shall take place. Such notice in accordance with the foregoing
clause also shall specify (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, the date on which the
holders of Common Shares shall be entitled to any such dividend, distribution or
right, and the amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, amalgamation, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is to take place
and the time, if any such time is to be fixed, as of which the holders of Common
Shares shall be entitled to exchange their Purchase Warrant Shares for
securities or other property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be sufficiently given
if addressed to Holder at the last address of Xxxxxx appearing on the books of
the Company and delivered in accordance with Section 16(d).
15. Authorized Shares. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its authorized and
unissued Common Shares a sufficient number of shares to provide for the issuance
of the Purchase Warrant Shares upon the exercise of any purchase rights under
this Warrant. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
the
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Purchase Warrant Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as may be necessary to
assure that such Purchase Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of
the Trading Market upon which the Common Shares may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, amalgamation, dissolution, issue or
sale of securities or any other voluntary 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 Holder as set forth in this Warrant against impairment. Without
limiting the generality of the foregoing, the Company will (a) not increase the
par value of any Purchase Warrant Shares above the amount payable therefor upon
such exercise immediately prior to such increase in par value, (b) take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Purchase Warrant Shares upon the
exercise of this Warrant, and (c) use commercially reasonable efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to perform
its obligations under this Warrant.
Before taking any action which would result in an adjustment
in the number of Purchase Warrant Shares for which this Warrant is exercisable
or in the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
16. Miscellaneous.
(a) Jurisdiction. This Warrant shall constitute a
contract under the laws of New York, without regard to its conflict of
law, principles or rules.
(b) Restrictions. The Holder acknowledges that the
Purchase Warrant Shares acquired upon the exercise of this Warrant, if
not registered, will have restrictions upon resale imposed by state,
provincial and federal securities laws.
(c) Nonwaiver and Expenses. No course of dealing or
any delay or failure to exercise any right hereunder on the part of
Holder shall operate as a waiver of such right or otherwise prejudice
Xxxxxx's rights, powers or remedies, notwithstanding all rights
hereunder terminate on the Termination Date. If the Company willfully
and knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document
required or permitted to be given or delivered to the Holder by the
Company shall be delivered in accordance with the notice provisions of
the Purchase Agreement.
(e) Limitation of Liability. No provision hereof, in
the absence of any affirmative action by Holder to exercise this
Warrant or to purchase Purchase Warrant Shares, and no enumeration
herein of the rights or privileges of Holder, shall give rise to any
liability of Holder for the purchase price of any Common Shares or as a
stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(f) Remedies. Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this
Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
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provisions of this Warrant and xxxxxx agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
(g) Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced
hereby shall inure to the benefit of and be binding upon the successors
of the Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Purchase Warrant Shares.
(h) Amendment. This Warrant may be modified or
amended or the provisions hereof waived with the written consent of the
Company and the Holder.
(i) Severability. Wherever possible, each provision
of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant
shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are
for the convenience of reference only and shall not, for any purpose,
be deemed a part of this Warrant.
(k) Currency. Unless otherwise indicated, all dollar
amounts referred to in this Warrant are in United States Dollars.
********************
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: August 28, 2003
CRYSTALLEX INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: President & CEO
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NOTICE OF EXERCISE
To: Crystallex International Corporation
(1) The undersigned hereby elects to purchase ________
Purchase Warrant Shares of Crystallex International Corporation pursuant to the
terms of the attached Warrant (only if exercised in full), and tenders herewith
payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Purchase
Warrant Shares as is necessary, in accordance with
the formula set forth in subsection 3(d), to exercise
this Warrant with respect to the maximum number of
Purchase Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in subsection
3(d).
(3) Please issue a certificate or certificates representing
said Purchase Warrant Shares in the name of the undersigned or in such other
name as is specified below:
________________________________________
The Purchase Warrant Shares shall be delivered to the following:
________________________________________
________________________________________
________________________________________
(4) Representations are True and Correct. The undersigned
hereby certifies to the Company that the undersigned's representations,
warranties, and agreements made in Section 3.2(c) and, if as of the date hereof
there is no effective Registration Statement relating to the resale of the
Purchase Warrant Shares, Sections 3.2(b), 3.2(d) and 3.2(e) and Article 4 of the
Share Purchase Agreement, dated August __, 2003, between the Company and the
purchasers signatory thereto, is true and correct as of the date hereof, and the
Company may rely upon such representations, warranties, and agreements in
issuing the Purchase Warrant Shares upon this exercise.
[PURCHASER]
By: ___________________________
Name:
Title:
Dated: ________________________
10
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.