Contract
EXHIBIT
4.2
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED
FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAW. THIS WARRANT AND SUCH
SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE PLEDGED, TRANSFERRED OR
HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR DELIVERY OF AN OPINION
OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE
ACT
OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE 144 UNDER THE ACT.
Warrant
for the Purchase of Shares of
Common
Stock
| Issuance Date: [ ], 2007 | ||
| No. 2007-[ ] |
______ Shares
|
FOR
VALUE
RECEIVED, VIOQUEST PHARMACEUTICALS, INC., a Delaware corporation (the
"Company"),
hereby certifies that [________________], its designee or its permitted assigns
is entitled to purchase from the Company, at any time or from time to time
commencing on [ ], 2007 and prior to 5:00 P.M., New York City time, on [ ],
2012
(the “Exercise
Period”),
[________________] fully paid and non-assessable shares of common stock, $0.001
par value per share, of the Company for a purchase price per share of
$[
].
Hereinafter,
(i) said common stock, $0.001 par value per share, of the Company, is referred
to as the
"Common
Stock";
(ii) the shares of the Common Stock (subject to adjustment as set forth herein)
purchasable hereunder or under any other Warrant (as hereinafter defined) are
referred to as the "Warrant
Shares";
(iii) the aggregate purchase price payable for the Warrant Shares purchasable
hereunder is referred to as the "Aggregate
Warrant Price";
(iv) the price payable (initially $0.40 per share subject to adjustment as
set
forth herein) for each of the Warrant Shares hereunder is referred to as the
"Per
Share Warrant Price";
(v) this Warrant, all similar Warrants issued on the date hereof and all
warrants hereafter issued in exchange or substitution for this Warrant or such
similar Warrants are referred to as the "Warrants";
(vi) the holder of this Warrant is referred to as the "Holder"
and the holder of this Warrant and all other Warrants and Warrant Shares are
referred to as the "Holders"
and Holders of more than fifty percent (50%) of the Warrant Shares then issuable
upon exercise of then outstanding Warrants are referred to as the "Majority
of the Holders")
and (vii) the then Current Market Price per share of the Common Stock (the
"Current
Market Price")
shall be deemed to be the last reported sale price of the Common Stock on the
Trading Day (as defined below) immediately prior to such date or, in case no
such reported sales take place on such day, the average of the last reported
bid
and asked prices of the Common Stock on such day, in either case on the
principal national securities exchange on which the Common Stock is admitted
to
trading or listed, or if not listed or admitted to trading on any such exchange,
the representative closing sale price of the Common Stock as reported by the
Nasdaq Global Market or the Nasdaq Capital Market (collectively,
“NASDAQ”),
or other similar organization if NASDAQ is no longer reporting such information,
or, if the Common Stock is not reported on NASDAQ, the per share sale price
for
the Common Stock in the over-the-counter market as reported by the OTC Bulletin
Board or another over-the-counter market, or if not so available, the fair
market value of the Common Stock as determined in good faith by the Company’s
Board of Directors. A "Trading
Day"
shall mean any day on which shares of the Company’s Common Stock are sold on the
respective exchange or over-the-counter market. The Aggregate Warrant Price
is
not subject to adjustment.
This
Warrant is one in a series of related warrants constituting in the aggregate
Warrants to purchase [ ] Warrant Shares, which were originally issued pursuant
to a series of Note and Warrant Purchase Agreements (the “Purchase
Agreements”)
between the Company and the investors named therein in connection with a private
placement by the Company of its securities, as described in the Company’s
Confidential Private Placement Memorandum dated June 20, 2007. By acceptance
of
this Warrant, the Holder agrees to comply with all applicable provisions of
the
Purchase Agreement.
1. Exercise
of Warrant.
(a) This
Warrant may be exercised in whole at any time, or in part from time to time,
by
the Holder during the Exercise Period:
(i) by
the surrender of this Warrant (with the subscription form at the end hereof
duly
executed) at the address set forth in subsection 10(a) hereof, together with
proper payment of the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part, with payment for the Warrant Shares made
by certified or official bank check payable to the order of, or wire transfer
of
immediately available funds to, the Company; or
(ii) if
at any time following the first anniversary of the Issuance Date the sale of
the
Warrant Shares by the Holder is not then registered under the Act pursuant
to an
effective registration statement, by the surrender of this Warrant (with the
cashless exercise form at the end hereof duly executed) (a “Cashless
Exercise”)
at the address set forth in subsection 10(a) hereof. Such presentation and
surrender shall be deemed a waiver of the Holder's obligation to pay the
Aggregate Warrant Price, or the proportionate part thereof if this Warrant
is
exercised in part. In the event of a Cashless Exercise, the Holder shall
exchange its Warrant for that number of Warrant Shares subject to such Cashless
Exercise multiplied by a fraction, the numerator of which shall be the
difference between the then Current Market Price and the Per Share Warrant
Price, and the denominator of which shall be the then Current Market Price.
For
purposes of any computation under this subsection 1(a), the then Current Market
Price shall be based on the Trading Day immediately preceding such Cashless
Exercise.
(b) If
this Warrant is exercised in part, this Warrant must be exercised for a number
of whole shares of the Common Stock and the Holder is entitled to receive a
new
Warrant covering the Warrant Shares that have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon surrender of this Warrant in connection with the exercise
of this Warrant pursuant to the terms hereof, the Company will (i) as soon
as
practicable but no later than three business days after the due exercise of
this
Warrant (the “Warrant
Share Delivery Date”),
issue a certificate or certificates in the name of the Holder for the largest
number of whole shares of the Common Stock to which the Holder shall be entitled
upon such exercise and, if this Warrant is exercised in whole, in lieu of any
fractional share of the Common Stock to which the Holder shall be entitled,
pay
to the Holder cash in an amount equal to the fair value of such fractional
share
(determined in such reasonable manner as the Board of Directors of the Company
shall determine), and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the proportionate part thereof,
if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
(c) In
addition to any other rights available to the Holder, if the Company fails
to
cause its transfer agent to transmit to the Holder a certificate or certificates
representing the Warrant Shares pursuant to an exercise on or before the Warrant
Share Delivery Date, and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of the Warrant 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
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of 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 Warrant Shares for which such exercise
was
not honored or deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect
to
an attempted exercise of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the 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 Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock
upon
exercise of the Warrant as required pursuant to the terms hereof.
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2. Reservation
of Warrant Shares; Listing.
The
Company agrees that, prior to the expiration of this Warrant, the Company shall
at all times (a) have authorized and in reserve, and shall keep available,
solely for issuance and delivery upon the exercise of this Warrant, the shares
of the Common Stock and other securities and properties as from time to time
shall be receivable upon the exercise of this Warrant, free and clear of all
restrictions on sale or transfer, other than under Federal or state securities
laws, and free and clear of all preemptive rights and rights of first refusal
and (b) if the Company hereafter lists its Common Stock on any national
securities exchange or NASDAQ, use its commercially reasonable efforts to keep
the Warrant Shares authorized for listing on such exchange upon notice of
issuance.
3. Certain
Adjustments.
(a) In
case the Company shall hereafter (i) pay a dividend or make a distribution
on
its Common Stock in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares, (iii) combine or
reverse-split its outstanding shares of Common Stock into a smaller number
of
shares or (iv) issue by reclassification of its Common Stock any shares of
capital stock of the Company, then the Per Share Warrant Price and the number
of
Warrant Shares shall forthwith be proportionately decreased and increased,
respectively, in the case of a subdivision, distribution or stock dividend,
or
proportionately increased and decreased, respectively, in the case of a
combination or reverse stock split. The Aggregate Warrant Price payable for
the
then total number
of
Warrant
Shares available for exercise under this Warrant shall remain the same.
Adjustments made pursuant to this subsection 3(a) shall become effective on
the
record date in the case of a dividend or distribution, and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification. If such dividend, distribution, subdivision
or
combination is not consummated in full, the Per Share Warrant Price and Warrant
Shares shall be readjusted accordingly.
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(b) In
case of any capital reorganization or reclassification, or any consolidation
or
merger to which the Company is a party other than a merger or consolidation
in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of all or substantially all of the assets of the
Company, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of
a
third corporation into the Company but excluding any exchange of securities
or
merger with another corporation in which the Company is a continuing corporation
and that does not result in any reclassification of or similar change in the
Common Stock), the Holder of this Warrant shall have the right thereafter to
receive on the exercise of this Warrant the kind and amount of securities,
cash
or other property which the Holder would have owned or have been entitled to
receive immediately after such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in
the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Section 3 shall thereafter correspondingly
be
made applicable, as nearly as may reasonably be, in relation to any shares
of
stock or other securities or property thereafter deliverable on the exercise
of
this Warrant. The above provisions of this subsection 3(b) shall similarly
apply
to successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The Company shall require the issuer
of any shares of stock or other securities or property thereafter deliverable
on
the exercise of this Warrant to be responsible for all of the agreements and
obligations of the Company hereunder. Notice of any such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and of said provisions so proposed to be made, shall be mailed to the Holders
of
the Warrants not less than twenty (20) days prior to such event. A sale of
all
or substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
(c) No
adjustment in the Per Share Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least $0.01 per share
of
Common Stock; provided,
however,
that any adjustments which by reason of this subsection 3(c) are not required
to
be made shall be carried forward and taken into account in any subsequent
adjustment; provided,
further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this subsection 3(c)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution, if any, to the Holder of this Warrant or Common Stock issuable
upon the exercise hereof. All calculations under this Section 3 shall be made
to
the nearest cent or to the nearest 1/100th of a share, as the case may be.
Anything in this Section 3 to the contrary notwithstanding, the Company shall
be
entitled to make such reductions in the Per Share Warrant Price, in addition
to
those required by this Section 3, as it in its discretion shall deem to be
advisable in order that any stock dividend, subdivision of shares or
distribution of rights to purchase stock or securities convertible or
exchangeable for stock hereafter made by the Company to its stockholders shall
not be taxable.
(d) Whenever
the Per Share Warrant Price or the number of Warrant Shares is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this Section 3, the Company shall promptly
prepare a brief statement of the facts requiring such adjustment or modification
and the manner of computing the same and cause copies of such certificate to
be
mailed to the Holders of the Warrants. The Company may, but shall not be
obligated to unless requested by a Majority of the Holders, obtain, at its
expense, a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Directors (who may be the regular auditors
of
the Company) setting forth the Per Share Warrant Price and the number of Warrant
Shares in effect after such adjustment or the effect of such modification,
a
brief statement of the facts requiring such adjustment or modification and
the
manner of computing the same and cause copies of such certificate to be mailed
to the Holders of the Warrants.
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(e) If
the Board of Directors of the Company shall declare any dividend or other
distribution with respect to the Common Stock other than a cash distribution
out
of earned surplus, the Company shall mail notice thereof to the Holders of
the
Warrants not less than ten (10) days prior to the record date fixed for
determining stockholders entitled to participate in such dividend or other
distribution.
(f) If,
as a result of an adjustment made pursuant to this Section 3, the Holder of
any
Warrant thereafter surrendered for exercise shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and
other capital stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written notice to the Holder
of
any Warrant promptly after such adjustment) shall determine, in good faith,
the
allocation of the adjusted Per Share Warrant Price between or among shares
or
such classes of capital stock or shares of Common Stock and other capital
stock.
(g) Upon
the expiration of any rights, options, warrants or conversion privileges with
respect to the issuance of which an adjustment to the Per Share Warrant Price
had been made, if such option, right warrant or conversion shall not have been
exercised, the number of Warrant Shares purchasable upon exercise of this
Warrant, to the extent this Warrant has not then been exercised, shall, upon
such expiration, be readjusted and shall thereafter be such as they would have
been had they been originally adjusted (or had the original adjustment not
been
required, as the case may be) on the basis of (A) the fact that Common Stock,
if
any, actually issued or sold upon the exercise of such rights, options, warrants
or conversion privileges, and (B) the fact that such shares of Common Stock,
if
any, were issued or sold for the consideration actually received by the Company
upon such exercise plus the consideration, if any, actually received by the
Company for the issuance, sale or grant of all such rights, options, warrants
or
conversion privileges whether or not exercised; provided,
however,
that no such readjustment shall have the effect of decreasing the number of
Warrant Shares purchasable upon exercise of this Warrant by an amount in excess
of the amount of the adjustment initially made in respect of the issuance,
sale
or grant of such rights, options, warrants or conversion
privileges.
(h) In
case any event shall occur as to which the other provisions of this Section
3
are not strictly applicable but as to which the failure to make any adjustment
would not fairly protect the purchase rights represented by this Warrant in
accordance with the essential intent and principles of the adjustments set
forth
in this Section 3 then, in each such case, the Board of Directors of the Company
shall in good faith determine the adjustment, if any, on a basis consistent
with
the essential intent and principles established herein, necessary to preserve
the purchase rights represented by the Warrants. Upon such determination, the
Company will promptly mail a copy thereof to the Holder of this Warrant and
shall make the adjustments described therein.
4. Fully
Paid Stock; Taxes.
The shares of the Common Stock represented by each and every certificate for
Warrant Shares delivered on the exercise of this Warrant shall, subject to
compliance by the Holder with the terms hereof, at the time of such delivery,
be
duly authorized, validly issued and outstanding, fully paid and nonassessable,
and not subject to preemptive rights or rights of first refusal imposed by
any
agreement to which the Company is a party, and the Company will take all such
actions as may be necessary to assure that the par value, if any, per share
of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company shall pay, when due and payable, any and all Federal
and state stamp, original issue or similar taxes which may be payable in respect
of the issue of any Warrant Share or any certificate thereof to the extent
required because of the issuance by the Company of such security.
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5. Registration
Under Act.
(a) The
Holder shall have the right to participate in the registration rights granted
to
purchasers of the Securities (as defined in the Purchase Agreement) pursuant
to
Article 5 of the Purchase Agreement. By acceptance of this Warrant, the Holder
agrees to comply with the provisions in Article 5 of the Purchase Agreement
to
the same extent as if it were a party thereto.
(b) Until
all of the Warrant Shares and any shares of Common Stock issuable thereunder
have been sold under a Registration Statement or pursuant to Rule 144(k), so
long as the Company’s Common Stock remains registered under the Act, the Company
shall use its commercially reasonable efforts to file with the Securities and
Exchange Commission all current reports and the information as may be necessary
to enable the Holder to effect sales of its shares in reliance upon Rule 144(k)
promulgated under the Act.
6. Investment
Intent; Limited Transferability.
(a) By
accepting this Warrant, the Holder represents to the Company that it understands
that this Warrant and any securities obtainable upon exercise of this Warrant
have not been registered for sale under Federal or state securities laws and
are
being offered and sold to the Holder pursuant to one or more exemptions from
the
registration requirements of such securities laws. In the absence of an
effective registration of such securities or an exemption therefrom, any
certificates for such securities shall bear the legend set forth on the first
page hereof. The Holder understands that it must bear the economic risk of
its
investment in this Warrant and any securities obtainable upon exercise of this
Warrant for an indefinite period of time, as this Warrant and such securities
have not been registered under Federal or state securities laws and therefore
cannot be sold unless subsequently registered under such laws, unless an
exemption from such registration is available. The Holder further represents
to
the Company, by accepting this Warrant, that it has full power and authority
to
accept this Warrant and make the representations set forth herein.
(b) The
Holder, by its acceptance of this Warrant, represents to the Company that it
is
acquiring this Warrant and will acquire any securities obtainable upon exercise
of this Warrant for its own account for investment and not with a view to,
or
for sale in connection with, any distribution thereof in violation of the Act.
The Holder agrees, by acceptance of this Warrant, that this Warrant and any
such
securities will not be sold or otherwise transferred unless (i) a registration
statement with respect to such transfer is effective under the Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Act.
(c) In
addition to the limitations set forth in Section 1 and in accordance with the
legend on the first page hereof, this Warrant may not be sold, transferred,
assigned or hypothecated by the Holder except in compliance with the provisions
of the Act and the applicable state securities “blue sky” laws, and is so
transferable only upon the books of the Company which it shall cause to be
maintained for such purpose. The Company may treat the registered Holder of
this
Warrant as it appears on the Company's books at any time as the Holder for
all
purposes. The Company shall permit any Holder of a Warrant or its duly
authorized attorney, upon written request during ordinary business hours, to
inspect and copy or make extracts from its books showing the registered Holders
of Warrant. All Warrants issued upon the transfer or assignment of this Warrant
will be dated the same date as this Warrant, and all rights of the holder
thereof shall be identical to those of the Holder unless, in each case,
otherwise prohibited by applicable law.
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(d) The
Holder has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the Warrants or the exercise of the
Warrants; and (ii) the opportunity to request such additional information which
the Company possesses or can acquire without unreasonable effort or
expense.
(e) The
Holder did not (i) receive or review any advertisement, article, notice or
other
communication published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally available; or
(ii) attend any seminar, meeting or investor or other conference whose attendees
were, to such Holder’s knowledge, invited by any general solicitation or general
advertising.
(f) The
Holder is an “accredited investor” within the meaning of Regulation D under the
Act. Such Holder is acquiring the Warrants for its own account and not with
a
present view to, or for sale in connection with, any distribution thereof in
violation of the registration requirements of the Act, without prejudice,
however, to such Holder’s right, subject to the provisions of the Purchase
Agreement and this Warrant, at all times to sell or otherwise dispose of all
or
any part of such Warrants and Warrant Shares.
(g) Either
by reason of such Holder’s business or financial experience or the business or
financial experience of its professional advisors (who are unaffiliated with
and
who are not compensated by the Company or any affiliate, finder or selling
agent
of the Company, directly or indirectly), such Holder has the capacity to protect
such Holder’s interests in connection with the transactions contemplated by this
Warrant and the Purchase Agreement. The Holder, by its acceptance of this
Warrant, represents to the Company that it is able to fend for itself, can
bear
the economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in this Warrant. Holder also represents it has not
been
organized for the purpose of acquiring this Warrant.
7.
Optional Redemption.
(a) In
the event that the closing price of the Common Stock for any twenty (20)
consecutive trading days on the OTC Bulletin Board (or upon a national
securities exchange or the NASDAQ, if then applicable) is at least $1.50
(subject to adjustment for any stock splits, combinations, or similar events
with respect to the Common Stock after the original issuance date of this
Warrant, as described in Section 3 hereof) (the “Redemption
Price”),
the Company shall be entitled to redeem all, but not less than all, of the
Warrants at a per Warrant redemption price of $0.001, at any time after the
completion of such twenty (20) consecutive trading day period by providing
thirty (30) business days’ written notice to the Holders. The Holder agrees to
return the certificate representing the redeemed Warrants to the Company upon
their redemption (or evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant in accordance with
Section 8 hereof).
(b) Notwithstanding
Section 7(a) hereof, for so long as any Warrant Shares are not subject to a
registration statement providing for the resale thereof under the Securities
Act
declared effective by the SEC or are not otherwise permitted to be immediately
sold, in whole, pursuant to an exemption to registration for such resale
pursuant to Rule 144(k) of the Act, the Company shall not be entitled to
exercise its redemption rights pursuant to Section 7(a) above.
8. Loss,
etc., of Warrant.
Upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and
denomination.
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9. Warrant
Holder Not Stockholder.
This Warrant does not confer upon the Holder any right to vote on or consent
to
or receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, nor any other rights or liabilities as a stockholder, prior
to the exercise hereof; this Warrant does, however, require certain notices
to
Holders as set forth herein.
10. Communication.
No notice or other communication under this Warrant shall be effective or deemed
to have been given unless, the same is in writing and is mailed by first-class
mail, postage prepaid, or via recognized overnight courier with confirmed
receipt, addressed to:
(a) the
Company at VioQuest Pharmaceuticals, Inc., 000 Xxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000, Attn: President, or other such address as
the
Company has designated in writing to the Holder;
or
(b) the
Holder at the address last
furnished to the Company in writing by the Holder.
11. Headings.
The headings of this Warrant have been inserted as a matter of convenience
and
shall not affect the construction hereof.
12. Applicable
Law.
This Warrant shall be governed by and construed in accordance with the law
of
the State of New York without giving effect to the principles of conflicts
of
law thereof.
13. Amendment,
Waiver, etc.
Except as expressly provided herein, neither this Warrant nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought; provided, however, that any
provision hereof may be amended, waived, discharged or terminated upon the
written consent of the Company and the Majority of the Holders and such
amendment, waiver, discharge or termination shall be effective with respect
to
the Company and all Holders.
IN
WITNESS WHEREOF,
the Company has caused this Warrant to be signed by the undersigned duly
authorized officer, this ___ day of _________, 2007.
By:
_________________________________
Its:
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