Contract
Exhibit
10.5
THIS
WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. EXCEPT
AS OTHERWISE SET FORTH HEREIN OR IN A SECURITIES PURCHASE AGREEMENT DATED AS
OF
SEPTEMBER 13, 2007, NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER SAID ACT OR, AN OPINION OF COUNSEL, IN
FORM,
SUBSTANCE AND SCOPE, CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE
TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 OR REGULATION S UNDER SUCH ACT.
Right
to Purchase 18,020,000 Shares of Common Stock, par Value $.001 Per
Share.
STOCK
PURCHASE WARRANT
THIS
CERTIFIES THAT, for value received, AJW Master Fund, Ltd. or its registered
assigns, is entitled to purchase from Juniper Group, Inc., a Nevada corporation
(the “Company”), at any time or from time to time during the period specified in
Paragraph 2 hereof, 18,020,000 fully paid and nonassessable shares of the
Company’s Common Stock, par value $.001 per share (the “Common Stock”), at an
exercise price per share equal to $.005 (the “Exercise Price”). The
term “Warrant Shares,” as used herein, refers to the shares of Common Stock
purchasable hereunder. The Warrant Shares and the Exercise Price are
subject to adjustment as provided in Paragraph 4 hereof. The term
“Warrants” means this Warrant and the other warrants issued pursuant to that
certain Securities Purchase Agreement, dated September 13, 2007, by and among
the Company and the Buyers listed on the execution page thereof (the “Securities
Purchase Agreement”).
This
Warrant is subject to the following terms, provisions, and
conditions:
1. Manner
of Exercise; Issuance of Certificates; Payment for Shares.
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Subject
to the provisions hereof, this Warrant may be exercised by the holder
hereof, in whole or in part, by the surrender of this Warrant, together
with a completed exercise agreement in the form attached hereto (the
“Exercise Agreement”), to the Company during normal business hours on any
business day at the Company’s principal executive offices (or such other
office or agency of the Company as it may designate by notice to
the
holder hereof), and upon (i) payment to the Company in cash, by certified
or official bank check or by wire transfer for the account of the
Company of the Exercise Price for the Warrant Shares specified in
the
Exercise Agreement or (ii) if the resale of the Warrant Shares by
the
holder is not then registered pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the “Securities
Act”), delivery to the Company of a written notice of an election to
effect a “Cashless Exercise” (as defined in Section 11(c) below) for the
Warrant Shares specified in the Exercise Agreement. The Warrant
Shares so purchased shall be deemed to be issued to the holder hereof
or
such holder’s designee, as the record owner of such shares, as of the
close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement shall have been
delivered, and payment shall have been made for such shares as set
forth above. Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified
in the
Exercise Agreement, shall be delivered to the holder hereof within
a
reasonable time, not exceeding five (5) business days, after this
Warrant
shall have been so exercised. The certificates so delivered
shall be in such denominations as may be requested by the holder
hereof
and shall be registered in the name of such holder or such other
name as
shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired,
the
Company shall, at its expense, at the time of delivery of such
certificates, deliver to the holder a new Warrant representing the
number
of shares with respect to which this Warrant shall not then have
been
exercised. In addition to all other available remedies at law
or in equity, if the Company fails to deliver certificates for the
Warrant
Shares within five (5) business days after this Warrant is exercised,
then
the Company shall pay to the holder in cash a penalty (the “Penalty”)
equal to 2% of the number of Warrant Shares that the holder is entitled
to
multiplied by the Market Price (as hereinafter defined) for each
day that
the Company fails to deliver certificates for the Warrant
Shares. For example, if the holder is entitled to 100,000
Warrant Shares and the Market Price is $2.00, then the Company shall
pay
to the holder $4,000 for each day that the Company fails to deliver
certificates for the Warrant Shares. The Penalty shall be paid
to the holder by the fifth day of the month following the month in
which
it has accrued.
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Notwithstanding
anything in this Warrant to the contrary, in no event shall the holder of this
Warrant be entitled to exercise a number of Warrants (or portions thereof)
in
excess of the number of Warrants (or portions thereof) upon exercise of which
the sum of (i) the number of shares of Common Stock beneficially owned by the
holder and its affiliates (other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unexercised Warrants and the
unexercised or unconverted portion of any other securities of the Company
(including the Notes (as defined in the Securities Purchase Agreement)) subject
to a limitation on conversion or exercise analogous to the limitation contained
herein) and (ii) the number of shares of Common Stock issuable upon exercise
of
the Warrants (or portions thereof) with respect to which the determination
described herein is being made, would result in beneficial ownership by the
holder and its affiliates of more than 4.9% of the outstanding shares of Common
Stock. For purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13D-G thereunder, except as
otherwise provided in clause (i) of the preceding
sentence. Notwithstanding anything to the contrary contained herein,
the limitation on exercise of this Warrant set forth herein may not be amended
without (i) the written consent of the holder hereof and the Company and (ii)
the approval of a majority of shareholders of the Company.
2. Period
of Exercise.
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This
Warrant is exercisable at any time or from time to time on or after
the
date on which this Warrant is issued and delivered pursuant to the
terms
of the Securities Purchase Agreement and before 6:00 p.m., New York,
New
York time on the seventh (7th) anniversary
of the
date of issuance (the “Exercise
Period”).
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3. Certain
Agreements of the Company.
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The
Company hereby covenants and agrees as
follows:
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(a) Shares
to be Fully Paid. Subject to Stockholder Approval (as such term
is defined in the Securities Purchase Agreement), all Warrant Shares will,
upon
issuance in accordance with the terms of this Warrant, be validly issued, fully
paid, and nonassessable and free from all taxes, liens, and charges with respect
to the issue thereof.
(b) Reservation
of Shares. Subject to Stockholder Approval (as such term is
defined in the Securities Purchase Agreement), during the Exercise Period,
the
Company shall at all times have authorized, and reserved for the purpose of
issuance upon exercise of this Warrant, a sufficient number of shares of
Common Stock to provide for the exercise of this Warrant.
(c) Listing. The
Company shall promptly secure the listing of the shares of Common Stock issuable
upon exercise of the Warrant upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance upon exercise of this Warrant) and
shall
maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all shares of Common Stock from time to time issuable upon the
exercise of this Warrant; and the Company shall so list on each national
securities exchange or automated quotation system, as the case may be, and
shall
maintain such listing of, any other shares of capital stock of the Company
issuable upon the exercise of this Warrant if and so long as any shares of
the
same class shall be listed on such national securities exchange or automated
quotation system.
(d) Certain
Actions Prohibited. The Company will not, by amendment of its
charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance
of
any of the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may reasonably be requested
by
the holder of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment, consistent
with the tenor and purpose of this Warrant. Without limiting the
generality of the foregoing, the Company (i) will not increase the par
value of any shares of Common Stock receivable upon the exercise of this Warrant
above the Exercise Price then in effect, and (ii) will take all such actions
as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon the
exercise of this Warrant.
(e) Successors
and Assigns. This Warrant will be binding upon any entity
succeeding to the Company by merger, consolidation, or acquisition of all or
substantially all the Company’s assets.
4. Antidilution
Provisions.
During
the Exercise Period, the Exercise Price and the number of Warrant Shares shall
be subject to adjustment from time to time as provided in this Paragraph
4.
In
the event that any adjustment of the Exercise Price as required herein results
in a fraction of a cent, such Exercise Price shall be rounded up to the nearest
cent.
(a) Adjustment
of Exercise Price and Number of Shares upon Issuance of Common
Stock. Except as otherwise provided in Paragraphs 4(c) and 4(e)
hereof, if and whenever on or after the date of issuance of this Warrant, the
Company issues or sells, or in accordance with Paragraph 4(b) hereof is deemed
to have issued or sold, any shares of Common Stock for no consideration or
for a
consideration per share (before deduction of reasonable expenses or commissions
or underwriting discounts or allowances in connection therewith) less than
the
Market Price on the date of issuance (a “Dilutive Issuance”), then immediately
upon the Dilutive Issuance, the Exercise Price will be reduced to a price
determined by multiplying the Exercise Price in effect immediately prior to
the
Dilutive Issuance by a fraction, (i) the numerator of which is an amount equal
to the sum of (x) the number of shares of Common Stock actually outstanding
immediately prior to the Dilutive Issuance, plus (y) the quotient of the
aggregate consideration, calculated as set forth in Paragraph 4(b) hereof,
received by the Company upon such Dilutive Issuance divided by the Market Price
in effect immediately prior to the Dilutive Issuance, and (ii) the denominator
of which is the total number of shares of Common Stock Deemed Outstanding (as
defined below) immediately after the Dilutive
Issuance. Notwithstanding anything contained in this Section 4 to the
contrary, the holder hereof hereby acknowledges that the issuance of any shares
of Common Stock in connection with any of the transactions set forth on
Schedule A, attached hereto, shall not be deemed a Dilutive Issuance and
accordingly there will be no reduction to the Exercise
Price.
(b) Effect
on Exercise Price of Certain Events. For purposes of determining
the adjusted Exercise Price under Paragraph 4(a) hereof, the following will
be
applicable:
(i) Issuance
of Rights or Options. If the Company in any manner issues or
grants any warrants, rights or options, whether or not immediately exercisable,
to subscribe for or to purchase Common Stock or other securities convertible
into or exchangeable for Common Stock (“Convertible Securities”) (such warrants,
rights and options to purchase Common Stock or Convertible Securities are
hereinafter referred to as “Options”) and the price per share for which Common
Stock is issuable upon the exercise of such Options is less than the Market
Price on the date of issuance or grant of such Options, then the maximum total
number of shares of Common Stock issuable upon the exercise of all such Options
will, as of the date of the issuance or grant of such Options, be deemed to
be
outstanding and to have been issued and sold by the Company for such price
per
share. For purposes of the preceding sentence, the “price per share
for which Common Stock is issuable upon the exercise of such Options” is
determined by dividing (i) the total amount, if any, received or receivable
by
the Company as consideration for the issuance or granting of all such Options,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Company upon the exercise of all such Options, plus, in the case of
Convertible Securities issuable upon the exercise of such Options, the minimum
aggregate amount of additional consideration payable upon the conversion or
exchange thereof at the time such Convertible Securities first become
convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the exercise of all such Options (assuming full
conversion of Convertible Securities, if applicable). No further
adjustment to the Exercise Price will be made upon the actual issuance of such
Common Stock upon the exercise of such Options or upon the conversion or
exchange of Convertible Securities issuable upon exercise of such
Options.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or
sells any Convertible Securities, whether or not immediately convertible (other
than where the same are issuable upon the exercise of Options) and the price
per
share for which Common Stock is issuable upon such conversion or exchange is
less than the Market Price on the date of issuance, then the maximum total
number of shares of Common Stock issuable upon the conversion or exchange of
all
such Convertible Securities will, as of the date of the issuance of such
Convertible Securities, be deemed to be outstanding and to have been issued
and
sold by the Company for such price per share. For the purposes of the
preceding sentence, the “price per share for which Common Stock is issuable upon
such conversion or exchange” is determined by dividing (i) the total amount, if
any, received or receivable by the Company as consideration for the issuance
or
sale of all such Convertible Securities, plus the minimum aggregate amount
of
additional consideration, if any, payable to the Company upon the conversion
or
exchange thereof at the time such Convertible Securities first become
convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the conversion or exchange of all such Convertible
Securities. No further adjustment to the Exercise Price will be made
upon the actual issuance of such Common Stock upon conversion or exchange of
such Convertible Securities.
(iii) Change
in Option Price or Conversion Rate. If there is a change at any
time in (i) the amount of additional consideration payable to the Company upon
the exercise of any Options; (ii) the amount of additional consideration, if
any, payable to the Company upon the conversion or exchange of any Convertible
Securities; or (iii) the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock (other than under or by reason
of provisions designed to protect against dilution), the Exercise Price in
effect at the time of such change will be readjusted to the Exercise Price
which
would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional consideration
or changed conversion rate, as the case may be, at the time initially granted,
issued or sold.
(iv) Treatment
of Expired Options and Unexercised Convertible Securities. If, in
any case, the total number of shares of Common Stock issuable upon exercise
of
any Option or upon conversion or exchange of any Convertible Securities is
not,
in fact, issued and the rights to exercise such Option or to convert or exchange
such Convertible Securities shall have expired or terminated, the Exercise
Price
then in effect will be readjusted to the Exercise Price which would have been
in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been
issued.
(v) Calculation
of Consideration Received. If any Common Stock, Options or
Convertible Securities are issued, granted or sold for cash, the consideration
received therefor for purposes of this Warrant will be the amount received
by
the Company therefor, before deduction of reasonable commissions, underwriting
discounts or allowances or other reasonable expenses paid or incurred by the
Company in connection with such issuance, grant or sale. In case any
Common Stock, Options or Convertible Securities are issued or sold for a
consideration part or all of which shall be other than cash, the amount of
the
consideration other than cash received by the Company will be the fair value
of
such consideration, except where such consideration consists of securities,
in
which case the amount of consideration received by the Company will be the
Market Price thereof as of the date of receipt. In case any Common
Stock, Options or Convertible Securities are issued in connection with any
acquisition, merger or consolidation in which the Company is the surviving
corporation, the amount of consideration therefor will be deemed to be the
fair
value of such portion of the net assets and business of the non-surviving
corporation as is attributable to such Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration
other than cash or securities will be determined in good faith by the Board
of
Directors of the Company.
(vi) Exceptions
to Adjustment of Exercise Price. No adjustment to the Exercise
Price will be made (i) upon the exercise of any warrants, options or convertible
securities granted, issued and outstanding on the date of issuance of this
Warrant; (ii) upon the grant or exercise of any stock or options which may
hereafter be granted or exercised under any employee benefit plan, stock option
plan or restricted stock plan of the Company now existing or to be implemented
in the future, so long as the issuance of such stock or options is approved
by a
majority of the independent members of the Board of Directors of the Company
or
a majority of the members of a committee of independent directors established
for such purpose; or (iii) upon the exercise of the Warrants.
(c) Subdivision
or Combination of Common Stock. If the Company at any time
subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a greater number of shares, then, after the date
of
record for effecting such subdivision, the Exercise Price in effect immediately
prior to such subdivision will be proportionately reduced. If the
Company at any time combines (by reverse stock split, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a smaller number of shares, then, after the date
of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionately increased.
(d) Adjustment
in Number of Shares. Upon each adjustment of the Exercise Price
pursuant to the provisions of this Paragraph 4, the number of shares of Common
Stock issuable upon exercise of this Warrant shall be adjusted by multiplying
a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Warrant immediately prior to such adjustment and dividing the product
so
obtained by the adjusted Exercise Price.
(e) Consolidation,
Merger or Sale. In case of any consolidation of the Company with,
or merger of the Company into any other corporation, or in case of any sale
or
conveyance of all or substantially all of the assets of the Company other than
in connection with a plan of complete liquidation of the Company, then as a
condition of such consolidation, merger or sale or conveyance, adequate
provision will be made whereby the holder of this Warrant will have the right
to
acquire and receive upon exercise of this Warrant in lieu of the shares of
Common Stock immediately theretofore acquirable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of this Warrant
had such consolidation, merger or sale or conveyance not taken
place. In any such case, the Company will make appropriate provision
to insure that the provisions of this Paragraph 4 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock or securities
thereafter deliverable upon the exercise of this Warrant. The Company
will not effect any consolidation, merger or sale or conveyance unless prior
to
the consummation thereof, the successor corporation (if other than the Company)
assumes by written instrument the obligations under this Paragraph 4 and the
obligations to deliver to the holder of this Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, the holder
may be entitled to acquire.
(f) Distribution
of Assets. In case the Company shall declare or make any
distribution of its assets (including cash) to holders of Common Stock as a
partial liquidating dividend, by way of return of capital or otherwise, then,
after the date of record for determining shareholders entitled to such
distribution, but prior to the date of distribution, the holder of this Warrant
shall be entitled upon exercise of this Warrant for the purchase of any or
all
of the shares of Common Stock subject hereto, to receive the amount of such
assets which would have been payable to the holder had such holder been the
holder of such shares of Common Stock on the record date for the determination
of shareholders entitled to such distribution.
(g) Notice
of Adjustment. Upon the occurrence of any event which requires
any adjustment of the Exercise Price, then, and in each such case, the Company
shall give notice thereof to the holder of this Warrant, which notice shall
state the Exercise Price resulting from such adjustment and the increase or
decrease in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and
the
facts upon which such calculation is based. Such calculation shall be
certified by the Chief Financial Officer of the Company.
(h) Minimum
Adjustment of Exercise Price. No adjustment of the Exercise Price
shall be made in an amount of less than 1% of the Exercise Price in effect
at
the time such adjustment is otherwise required to be made, but any such lesser
adjustment shall be carried forward and shall be made at the time and together
with the next subsequent adjustment which, together with any adjustments so
carried forward, shall amount to not less than 1% of such Exercise
Price.
(i) No
Fractional Shares. No fractional shares of Common Stock are to be
issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the Market Price of a share of Common
Stock on the date of such exercise.
(j) Other
Notices. In case at any time:
(i) the
Company shall declare any dividend upon the Common Stock payable in shares
of
stock of any class or make any other distribution (including dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) the
Company shall offer for subscription pro rata to the holders of the Common
Stock
any additional shares of stock of any class or other rights;
(iii) there
shall be any capital reorganization of the Company, or reclassification of
the Common Stock, or consolidation or merger of the Company with or into, or
sale of all or substantially all its assets to, another corporation or
entity; or
(iv) there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company;
then,
in each such case, the Company shall give to the holder of this Warrant (a)
notice of the date on which the books of the Company shall close or a record
shall be taken for determining the holders of Common Stock entitled to receive
any such dividend, distribution, or subscription rights or for determining
the holders of Common Stock entitled to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, notice of the date (or, if not then known, a reasonable
approximation thereof by the Company) when the same shall take
place. Such notice shall also specify the date on which the holders
of Common Stock shall be entitled to receive such dividend, distribution, or
subscription rights or to exchange their Common Stock for stock or other
securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least
30 days prior to the record date or the date on which the Company’s books are
closed in respect thereto. Failure to give any such notice or any
defect therein shall not affect the validity of the proceedings referred to
in
clauses (i), (ii), (iii) and (iv) above.
(k) Certain
Events. If any event occurs of the type contemplated by the
adjustment provisions of this Paragraph 4 but not expressly provided for by
such
provisions, the Company will give notice of such event as provided in Paragraph
4(g) hereof, and the Company’s Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of shares of Common Stock
acquirable upon exercise of this Warrant so that the rights of the holder shall
be neither enhanced nor diminished by such event.
(l) Certain
Definitions.
(i) “Common
Stock Deemed Outstanding” shall mean the number of shares of Common Stock
actually outstanding (not including shares of Common Stock held in the treasury
of the Company), plus (x) pursuant to Paragraph 4(b)(i) hereof, the maximum
total number of shares of Common Stock issuable upon the exercise of Options,
as
of the date of such issuance or grant of such Options, if any, and (y) pursuant
to Paragraph 4(b)(ii) hereof, the maximum total number of shares of Common
Stock
issuable upon conversion or exchange of Convertible Securities, as of the date
of issuance of such Convertible Securities, if any.
(ii) “Market
Price,” as of any date, (i) means the average of the last reported sale
prices for the shares of Common Stock on the OTCBB for the five (5) Trading
Days
immediately preceding such date as reported by Bloomberg, or (ii) if the OTCBB
is not the principal trading market for the shares of Common Stock, the average
of the last reported sale prices on the principal trading market for the Common
Stock during the same period as reported by Bloomberg, or (iii) if market value
cannot be calculated as of such date on any of the foregoing bases, the Market
Price shall be the fair market value as reasonably determined in good faith
by
(a) the Board of Directors of the Company or, at the option of a
majority-in-interest of the holders of the outstanding Warrants by (b) an
independent investment bank of nationally recognized standing in the valuation
of businesses similar to the business of the corporation. The manner of
determining the Market Price of the Common Stock set forth in the foregoing
definition shall apply with respect to any other security in respect of which
a
determination as to market value must be made hereunder.
(iii) “Common
Stock,” for purposes of this Paragraph 4, includes the Common Stock, par
value $.001 per share, and any additional class of stock of the Company having
no preference as to dividends or distributions on liquidation, provided that
the
shares purchasable pursuant to this Warrant shall include only shares of Common
Stock, par value $.001 per share, in respect of which this Warrant is
exercisable, or shares resulting from any subdivision or combination of such
Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Paragraph 4(e)
hereof, the stock or other securities or property provided for in such
Paragraph.
5. Issue
Tax.
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The
issuance of certificates for Warrant Shares upon the exercise of
this
Warrant shall be made without charge to the holder of this Warrant
or such
shares for any issuance tax or other costs in respect thereof, provided
that the Company shall not be required to pay any tax which may be
payable
in respect of any transfer involved in the issuance and delivery
of any
certificate in a name other than the holder of this
Warrant.
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6. No
Rights or Liabilities as a Shareholder.
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This
Warrant shall not entitle the holder hereof to any voting rights
or other
rights as a shareholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the holder hereof
to
purchase Warrant Shares, and no mere enumeration herein of the rights
or
privileges of the holder hereof, shall give rise to any liability
of such
holder for the Exercise Price or as a shareholder of the Company,
whether
such liability is asserted by the Company or by creditors of the
Company.
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7. Transfer,
Exchange, and Replacement of Warrant.
(a) Restriction
on Transfer. This Warrant and the rights granted to the holder
hereof are transferable, in whole or in part, upon surrender of this Warrant,
together with a properly executed assignment in the form attached hereto, at
the
office or agency of the Company referred to in Paragraph 7(e) below,
provided, however, that any transfer or assignment shall be subject to the
conditions set forth in Paragraph 7(f) hereof and to the applicable provisions
of the Securities Purchase Agreement. Until due presentment for
registration of transfer on the books of the Company, the Company may treat
the
registered holder hereof as the owner and holder hereof for all purposes, and
the Company shall not be affected by any notice to the
contrary. Notwithstanding anything to the contrary contained
herein, the registration rights described in Paragraph 8 are assignable only
in
accordance with the provisions of that certain Registration Rights Agreement,
dated September 13, 2007, by and among the Company and the other signatories
thereto (the “Registration Rights Agreement”).
(b) Warrant
Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the holder hereof at the office
or agency of the Company referred to in Paragraph 7(e) below, for new Warrants
of like tenor representing in the aggregate the right to purchase the number
of
shares of Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall
be
designated by the holder hereof at the time of such surrender.
(c) Replacement
of Warrant. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction, or mutilation of this Warrant
and, in the case of any such loss, theft, or destruction, upon delivery of
an indemnity agreement reasonably satisfactory in form and amount to the
Company, or, in the case of any such mutilation, upon surrender and cancellation
of this Warrant, the Company, at its expense, will execute and deliver, in
lieu
thereof, a new Warrant of like tenor.
(d) Cancellation;
Payment of Expenses. Upon the surrender of this Warrant in
connection with any transfer, exchange, or replacement as provided in this
Paragraph 7, this Warrant shall be promptly canceled by the
Company. The Company shall pay all taxes (other than securities
transfer taxes) and all other expenses (other than legal expenses, if any,
incurred by the holder or transferees) and charges payable in connection with
the preparation, execution, and delivery of Warrants pursuant to this Paragraph
7.
(e) Register. The
Company shall maintain, at its principal executive offices (or such other office
or agency of the Company as it may designate by notice to the holder hereof),
a
register for this Warrant, in which the Company shall record the name and
address of the person in whose name this Warrant has been issued, as well as
the
name and address of each transferee and each prior owner of this
Warrant.
(f) Exercise
or Transfer Without Registration. If, at the time of the
surrender of this Warrant in connection with any exercise, transfer, or exchange
of this Warrant, this Warrant (or, in the case of any exercise, the Warrant
Shares issuable hereunder), shall not be registered under the Securities Act
of
1933, as amended (the “Securities Act”) and under applicable state securities or
blue sky laws, the Company may require, as a condition of allowing such
exercise, transfer, or exchange, (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 and counsel are acceptable to the Company, to the effect
that such exercise, transfer, or exchange may be made without registration
under
said 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; provided that no such opinion, letter or status as an “accredited investor”
shall be required in connection with a transfer pursuant to Rule 144 under
the
Securities Act. The first holder of this Warrant, by taking and
holding the same, represents to the Company that such holder is acquiring this
Warrant for investment and not with a view to the distribution
thereof.
8. Registration
Rights.
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The
initial holder of this Warrant (and certain assignees thereof) is
entitled
to the benefit of such registration rights in respect of the Warrant
Shares as are set forth in Section 2 of the Registration Rights
Agreement.
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9. Notices.
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All
notices, requests, and other communications required or permitted
to be
given or delivered hereunder to the holder of this Warrant shall
be in
writing, and shall be personally delivered, or shall be sent by certified
or registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to such holder at the address shown for such
holder
on the books of the Company, or at such other address as shall have
been
furnished to the Company by notice from such holder. All
notices, requests, and other communications required or permitted
to be
given or delivered hereunder to the Company shall be in writing,
and shall
be personally delivered, or shall be sent by certified or registered
mail
or by recognized overnight mail courier, postage prepaid and addressed,
to
the office of the Company at 00 Xxxxxx Xxxx Xxxx, Xxxxx Xxxx, XX
00000,
Attention: Chief Executive Officer, or at such other address as shall
have
been furnished to the holder of this Warrant by notice from the
Company. Any such notice, request, or other communication may
be sent by facsimile, but shall in such case be subsequently confirmed
by
a writing personally delivered or sent by certified or registered
mail or
by recognized overnight mail courier as provided above. All
notices, requests, and other communications shall be deemed to have
been
given either at the time of the receipt thereof by the person entitled
to
receive such notice at the address of such person for purposes of
this Paragraph 9, or, if mailed by registered or certified mail or
with a
recognized overnight mail courier upon deposit with the United States
Post
Office or such overnight mail courier, if postage is prepaid and
the
mailing is properly addressed, as the case may
be.
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10. Governing
Law.
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THIS
WARRANT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES
OF
CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED
IN NEW
YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS WARRANT,
THE
AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE
DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR
PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE OF PROCESS
UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT
EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH
PARTIES AGREE THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT
OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER. THE
PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER THIS WARRANT
SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS’ FEES,
INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
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11. Miscellaneous.
(a) Amendments. This
Warrant and any provision hereof may only be amended by an instrument in writing
signed by the Company and the holder hereof.
(b) Descriptive
Headings. The descriptive headings of the several paragraphs of
this Warrant are inserted for purposes of reference only, and shall not
affect the meaning or construction of any of the provisions hereof.
(d) Remedies. The
Company acknowledges that a breach by it of its obligations hereunder will
cause
irreparable harm to the holder, by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this
Warrant will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Warrant, that the holder shall
be entitled, in addition to all other available remedies at law or in equity,
and in addition to the penalties assessable herein, to an injunction or
injunctions restraining, preventing or curing any breach of this Warrant and
to
enforce specifically the terms and provisions thereof, without the necessity
of
showing economic loss and without any bond or other security being
required.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer.
JUNIPER
GROUP, INC.
By:
/s/
Xxxxx Xxxxxxxxxxx
Chief
Executive Officer
Dated
as of September 13, 2007
FORM
OF EXERCISE AGREEMENT
Dated: ________
__,
200_
To: ______________________
The
undersigned, pursuant to the provisions set forth in the within Warrant, hereby
agrees to purchase ________ shares of Common Stock covered by such Warrant,
and
makes payment herewith in full therefor at the price per share provided by
such Warrant in cash or by certified or official bank check in the amount of,
or, if the resale of such Common Stock by the undersigned is not currently
registered pursuant to an effective registration statement under the Securities
Act of 1933, as amended, by surrender of securities issued by the Company
(including a portion of the Warrant) having a market value (in the case of
a
portion of this Warrant, determined in accordance with Section 11(c) of the
Warrant) equal to $_________. Please issue a certificate or
certificates for such shares of Common Stock in the name of and pay any
cash for any fractional share to:
Name: ______________________________
Signature:
Address:____________________________
_____________________________
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Note:
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The
above signature should correspond exactly with the name on the face
of the
within Warrant, if applicable.
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and,
if said number of shares of Common Stock shall not be all the shares purchasable
under the within Warrant, a new Warrant is to be issued in the name of said
undersigned covering the balance of the shares purchasable thereunder less
any
fraction of a share paid in cash.
FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock covered thereby set forth hereinbelow,
to:
Name
of
Assignee Address
No
of
Shares
,
and hereby irrevocably constitutes and appoints
___________________________________ as agent and attorney-in-fact to
transfer said Warrant on the books of the within-named corporation, with
full power of substitution in the premises.
Dated: ________
__, 200_
In
the presence
of: ______________________________
Name:______________________________
Signature:_________________________
Title
of Signing Officer or Agent (if any):
______________________________
Address: ______________________________
______________________________
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Note:
|
The
above signature should correspond exactly with the name on the face
of the
within Warrant, if
applicable.
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