Contract
THIS
WARRANT (THIS “WARRANT”) AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT
AND UNDER APPLICABLE STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF
SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
WARRANT
TO PURCHASE
SHARES OF
COMMON STOCK
OF
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No.:
_______
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Number
of Shares: ____________
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Date of
Issuance: ____________ (the “Original Issue Date”)
FOR VALUE RECEIVED, the undersigned,
SpectrumDNA, Inc., a Delaware corporation (together with its successors and
assigns, the “Issuer”), hereby certifies that ____________, or its permitted
assignee (the “Holder”) is entitled to subscribe for and purchase, during the
Term (as hereinafter defined), up to ____________ (_________) shares (subject to
adjustment as hereinafter provided) of the duly authorized, validly issued,
fully paid and non-assessable Common Stock (as defined below), at an exercise
price per share equal to the Warrant Price (as defined below) then in effect,
subject, however, to the provisions and upon the terms and conditions
hereinafter set forth. Capitalized terms used in this Warrant and not
otherwise defined herein shall have the respective meanings specified in Section
7 hereof.
1.
Term. The
term of this Warrant shall commence on the final closing of the Private
Placement (as defined below) and shall expire at 5:00 p.m., Eastern Time, on
such date which is five (5) years thereafter.
2.
Method of Exercise; Payment;
Issuance of New Warrant; Transfer and Exchange.
(a) Time of
Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part during the Term.
(b) Method of
Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise form
attached hereto duly executed (the “Notice of Exercise”) at the principal office
of the Issuer, and by the payment to the Issuer of an amount of consideration
therefor equal to the Warrant Price in effect on the date of such exercise
multiplied by the number of shares of Warrant Stock with respect to which this
Warrant is then being exercised payable by certified or official bank check or
by wire transfer to an account designated by the Issuer.
(c) Issuance of Stock
Certificates. In the event of any exercise of this Warrant in
accordance with and subject to the terms and conditions hereof, (i) certificates
for the shares of Warrant Stock so purchased shall be dated the date of such
exercise and delivered to the Holder hereof within a reasonable time after the
exercise notice is delivered to the Issuer (the “Delivery Date”), and the Holder
hereof shall be deemed for all purposes to be the holder of the shares of
Warrant Stock so purchased as of the date of such exercise and (ii) unless this
Warrant has expired, a new Warrant representing the number of shares of Warrant
Stock, if any, with respect to which this Warrant shall not then have been
exercised (less any amount thereof which shall have been canceled in payment or
partial payment of the Warrant Price as hereinabove provided) shall also be
issued to the Holder hereof at the Issuer's expense within such
time.
(d) Transferability of
Warrant. Subject to Section 2(e) hereof, this Warrant may be
transferred by a Holder without the consent of the Issuer. If
transferred pursuant to this paragraph, this Warrant may be transferred on the
books of the Issuer by the Holder hereof in person or by duly authorized
attorney, upon surrender of this Warrant at the principal office of the Issuer,
properly endorsed (by the Holder executing an assignment in the form attached
hereto) and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer. This Warrant is exchangeable at
the principal office of the Issuer for Warrants to purchase the same aggregate
number of shares of Warrant Stock, each new Warrant to represent the right to
purchase such number of shares of Warrant Stock as the Holder hereof shall
designate at the time of such exchange. All Warrants issued on
transfers or exchanges shall be dated the Original Issue Date and shall be
identical with this Warrant except as to the number of shares of Warrant Stock
issuable pursuant thereto.
(e) Compliance with Securities
Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or an
exemption from registration, under the Securities Act and any applicable state
securities laws.
(ii) Except
as provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED.
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(iii) The
Issuer agrees to reissue this Warrant or certificates representing any of the
Warrant Stock, without the legend set forth above if at such time, prior to
making any transfer of any such securities, the Holder shall give written notice
to the Issuer describing the manner and terms of such transfer and removal as
the Company may reasonably request. Such proposed transfer and
removal will not be effected until: (a) either (i) the Issuer has received an
opinion of counsel reasonably satisfactory to the Issuer, to the effect that the
registration of such securities under the Securities Act is not required in
connection with such proposed transfer and the opinion provides that such legend
can be removed, (ii) a registration statement under the Securities Act covering
such proposed disposition has been filed by the Issuer with the Securities and
Exchange Commission and has become effective under the Securities Act, (iii) the
Issuer has received other evidence reasonably satisfactory to the Issuer that
such registration and qualification under the Securities Act and state
securities laws are not required and that such legend can be removed, or (iv)
the Holder provides the Issuer with reasonable assurances that such security can
be sold pursuant to Rule 144 under the Securities Act; and (b) either (i) the
Issuer has received an opinion of counsel reasonably satisfactory to the Issuer,
to the effect that registration or qualification under the securities or “blue
sky” laws of any state is not required in connection with such proposed
disposition, or (ii) compliance with applicable state securities or “blue sky”
laws has been effected or a valid exemption exists with respect
thereto. In the case of any proposed transfer under this Section
2(e), the Issuer will use reasonable efforts to comply with any such applicable
state securities or “blue sky” laws, but shall in no event be required, (x) to
qualify to do business in any state where it is not then qualified, (y) to take
any action that would subject it to tax or to the general service of process in
any state where it is not then subject, or (z) to comply with state securities
or “blue sky” laws of any state for which registration by coordination is
unavailable to the Issuer. The restrictions on transfer contained in
this Section 2(e) shall be in addition to, and not by way of limitation of, any
other restrictions on transfer contained in any other section of this
Warrant.
(f) Accredited Investor
Status. In no event may the Holder exercise this Warrant in
whole or in part unless the Holder is an “accredited investor” as defined in
Regulation D under the Securities Act.
3. Stock Fully Paid;
Reservation and Listing of Shares; Covenants.
(a) Stock Fully
Paid. The Issuer represents, warrants, covenants and agrees
that all shares of Warrant Stock which may be issued upon the exercise of this
Warrant or otherwise hereunder will, when issued in accordance with the terms of
this Warrant, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by or through the
Issuer. The Issuer further covenants and agrees that during the
period within which this Warrant may be exercised, the Issuer will at all times
have authorized and reserved for the purpose of issuance upon exercise of this
Warrant a number of shares of Common Stock equal to the aggregate number of
shares of Common Stock to provide for the exercise of this Warrant.
(b) Reservation. If
any shares of Common Stock required to be reserved for issuance upon exercise of
this Warrant or as otherwise provided hereunder require registration or
qualification with any governmental authority under any federal or state law
before such shares may be so issued, the Issuer will in good faith use its best
efforts as expeditiously as possible at its expense to cause such shares to be
duly registered or qualified. If the Issuer shall list any shares of
Common Stock on any securities exchange or market it will, at its expense, list
thereon, maintain and increase when necessary such listing, of, all shares of
Warrant Stock from time to time issued upon exercise of this Warrant or as
otherwise provided hereunder (provided that such Warrant Stock has been
registered pursuant to a registration statement under the Securities Act then in
effect), and, to the extent permissible under the applicable securities exchange
rules, all unissued shares of Warrant Stock which are at any time issuable
hereunder, so long as any shares of Common Stock shall be so
listed. The Issuer will also so list on each securities exchange or
market, and will maintain such listing of, any other securities which the Holder
of this Warrant shall be entitled to receive upon the exercise of this Warrant
if at the time any securities of the same class shall be listed on such
securities exchange or market by the Issuer.
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(c) Covenants. The
Issuer shall not by any action including, without limitation, amending the
Certificate of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the
Issuer will (i) not permit the par value, if any, of its Common Stock to exceed
the then effective Warrant Price, (ii) not amend or modify any provision of the
Certificate of Incorporation or by-laws of the Issuer in any manner that would
adversely affect the rights of the holders of the Warrants, (iii) take all such
action as may be reasonably necessary in order that the Issuer may validly and
legally issue fully paid and nonassessable shares of Common Stock, free and
clear of any liens, claims, encumbrances and restrictions (other than as
provided herein) upon the exercise of this Warrant, and (iv) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be reasonably
necessary to enable the Issuer to perform its obligations under this
Warrant.
(d) Loss, Theft, Destruction of
Warrants. Upon receipt of evidence satisfactory to the Issuer
of the ownership of and the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction, upon receipt of
indemnity or security satisfactory to the Issuer or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Issuer will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing the right to purchase the same
number of shares of Common Stock.
4.
Adjustment of Warrant
Price. The price at which such shares of Warrant Stock may be
purchased upon exercise of this Warrant shall be subject to adjustment from time
to time as set forth in this Section 4. The Issuer shall give the Holder notice
of any event described below which requires an adjustment pursuant to this
Section 4 in accordance with the notice provisions set forth in Section
5.
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(a)
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Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or
Sale.
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(i) In
case the Issuer after the Original Issue Date shall do any of the following
(each, a “Triggering Event”): (a) consolidate or merge with or into any other
Person and the Issuer shall not be the continuing or surviving corporation of
such consolidation or merger, or (b) permit any other Person to consolidate with
or merge into the Issuer and the Issuer shall be the continuing or surviving
Person but, in connection with such consolidation or merger, any Capital Stock
of the Issuer shall be changed into or exchanged for Securities of any other
Person or cash or any other property, or (c) transfer all or substantially all
of its properties or assets to any other Person, or (d) effect a capital
reorganization or reclassification of its Capital Stock, then, and in the case
of each such Triggering Event, proper provision shall be made so that, upon the
basis and the terms and in the manner provided in this Warrant, the Holder of
this Warrant shall be entitled upon the exercise hereof at any time after the
consummation of such Triggering Event, to the extent this Warrant is not
exercised prior to such Triggering Event, to receive at the Warrant Price in
effect at the time immediately prior to the consummation of such Triggering
Event in lieu of the Common Stock issuable upon such exercise of this Warrant
prior to such Triggering Event, the Securities, cash and property to which such
Holder would have been entitled upon the consummation of such Triggering Event
if such Holder had exercised the rights represented by this Warrant immediately
prior thereto (including the right of a shareholder to elect the type of
consideration it will receive upon a Triggering Event), subject to adjustments
(subsequent to such corporate action) as nearly equivalent as possible to the
adjustments provided for elsewhere in this Section 4.
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(ii) Prior
to the consummation of any Triggering Event, each Person (other than the Issuer)
which may be required to deliver any Securities, cash or property upon the
exercise of this Warrant as provided herein shall assume, by written instrument
delivered to, and reasonably satisfactory to, the Holder of this Warrant, (A)
the obligations of the Issuer under this Warrant (and if the Issuer shall
survive the consummation of such Triggering Event, such assumption shall be in
addition to, and shall not release the Issuer from, any continuing obligations
of the Issuer under this Warrant) and (B) the obligation to deliver to such
Holder such Securities, cash or property as, in accordance with the foregoing
provisions of this subsection (a).
(b) Stock Dividends,
Subdivisions and Combinations. If at any time the Issuer
shall:
(i) make
or issue or set a record date for the holders of the Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(iii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
then (1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock for
which this Warrant is exercisable immediately after such
adjustment.
(c) Certain Other
Distributions. If at any time the Issuer shall make or issue
or set a record date for the holders of the Common Stock for the purpose of
entitling them to receive any dividend or other distribution of:
(i) cash,
(ii) any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash or Common
Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash or Common Stock), then (1)
the number of shares of Common Stock for which this Warrant is exercisable shall
be adjusted to equal the product of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such adjustment
multiplied by a fraction (A) the numerator of which shall be the Per Share
Market Value of Common Stock at the date of taking such record and (B) the
denominator of which shall be such Per Share Market Value minus the amount
allocable to one share of Common Stock of any such cash so distributable and of
the fair value (as determined in good faith by the Board of Directors of the
Issuer) of any and all such evidences of indebtedness, shares of stock, other
securities or property or warrants or other subscription or purchase rights so
distributable, and (2) the Warrant Price then in effect shall be adjusted to
equal (A) the Warrant Price then in effect multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to the
adjustment divided by (B) the number of shares of Common Stock for which this
Warrant is exercisable immediately after such adjustment. A
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value or from no par value to par value) into shares of
Common Stock and shares of any other class of stock shall be deemed a
distribution by the Issuer to the holders of its Common Stock of such shares of
such other class of stock within the meaning of this Section 4(c) and, if the
outstanding shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as a part of such reclassification, such change
shall be deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of Section
4(b).
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(d) Other Provisions applicable
to Adjustments under this Section. The following provisions
shall be applicable to the making of adjustments of the number of shares of
Common Stock for which this Warrant is exercisable and the Warrant Price then in
effect provided for in this Section 4:
(i) When Adjustments to Be
Made. The adjustments required by this Section 4 shall be made
whenever and as often as any specified event requiring an adjustment shall
occur, except that any adjustment of the number of shares of Common Stock for
which this Warrant is exercisable that would otherwise be required may be
postponed (except in the case of a subdivision or combination of shares of the
Common Stock, as provided for in Section 4(b)) up to, but not beyond the date of
exercise if such adjustment either by itself or with other adjustments not
previously made adds or subtracts less than one percent (1%) of the shares of
Common Stock for which this Warrant is exercisable immediately prior to the
making of such adjustment. Any adjustment representing a change of
less than such minimum amount (except as aforesaid) which is postponed shall be
carried forward and made as soon as such adjustment, together with other
adjustments required by this Section 4 and not previously made, would result in
a minimum adjustment or on the date of exercise. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(ii) Fractional
Interests. In computing adjustments under this Section 4,
fractional interests in Common Stock shall be taken into account to the nearest
one one-hundredth (1/100th) of a share.
(iii) When Adjustment Not
Required. If the Issuer shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or
distribution or subscription or purchase rights and shall, thereafter and before
the distribution to stockholders thereof, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(e) Form of Warrant after
Adjustments. The form of this Warrant need not be changed
because of any adjustments in the Warrant Price or the number and kind of
Securities purchasable upon the exercise of this Warrant.
5. Notice of Adjustments;
Dispute Resolution. Whenever the Warrant Price or Warrant
Share Number shall be adjusted pursuant to Section 4 hereof (for purposes of
this Section 5, each an “adjustment”), the Issuer shall cause its Chief
Financial Officer to prepare and execute a certificate setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated (including a
description of the basis on which the Board of Directors of the Issuer made any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such adjustment, and shall cause copies of such certificate to
be delivered to the Holder of this Warrant promptly after each
adjustment. Notwithstanding any dispute between the Issuer and the
Holder of this Warrant with respect to the matters set forth in such
certificate, the Issuer shall cause its transfer agent to promptly issue to the
Holder the number of shares of Warrant Stock that is not disputed.
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6. Fractional
Shares. No fractional shares of Warrant Stock will be issued
in connection with any exercise hereof, but in lieu of such fractional shares,
the Issuer shall round the number of shares to be issued upon exercise up to the
nearest whole number of shares.
7. Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
“Capital Stock” means and includes (i)
any and all shares, interests, participations or other equivalents of or
interests in (however designated) corporate stock, including, without
limitation, shares of preferred or preference stock, (ii) all partnership
interests (whether general or limited) in any Person which is a partnership,
(iii) all membership interests or limited liability company interests in any
limited liability company, and (iv) all equity or ownership interests in any
Person of any other type.
“Certificate of Incorporation” means
the Certificate of Incorporation of the Issuer as in effect on the Original
Issue Date, and as hereafter from time to time amended, modified, supplemented
or restated in accordance with the terms hereof and thereof and pursuant to
applicable law.
“Common Stock” means the Common Stock,
par value $0.001 per share, of the Issuer and any other Capital Stock into which
such stock may hereafter be changed.
“Governmental Authority” means any
governmental, regulatory or self-regulatory entity, department, body, official,
authority, commission, board, agency or instrumentality, whether federal, state
or local, and whether domestic or foreign.
“Independent Appraiser” means a
nationally recognized or major regional investment banking firm or firm of
independent certified public accountants of recognized standing (which may be
the firm that regularly examines the financial statements of the Issuer) that is
regularly engaged in the business of appraising the Capital Stock or assets of
corporations or other entities as going concerns, and which is not affiliated
with either the Issuer or the holder of any Warrant.
“Majority Holders” means at any time
the holders of Warrants exercisable for a majority of the shares of Warrant
Stock issuable under the Warrants at the time outstanding.
“OTC Bulletin Board” means the
over-the-counter electronic bulletin board.
“Person” means an individual,
corporation, limited liability company, partnership, joint stock company, trust,
unincorporated organization, joint venture, Governmental Authority or other
entity of whatever nature.
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“Per Share Market Value” means on any
particular date (a) the last closing sale price per share of the Common Stock on
such date on the OTC Bulletin Board or another registered national stock
exchange on which the Common Stock is then listed, or if there is no such price
on such date, then the closing sale price on such exchange or quotation system
on the date nearest preceding such date, or (b) if the Common Stock is not
listed then on the OTC Bulletin Board or any registered national stock exchange,
the last closing sale price for a share of Common Stock in the over the counter
market, as reported by the OTC Bulletin Board or in the National Quotation
Bureau Incorporated or similar organization or agency succeeding to its
functions of reporting prices) at the close of business on such date, or (c) if
the Common Stock is not then reported by the OTC Bulletin Board or the National
Quotation Bureau Incorporated (or similar organization or agency succeeding to
its functions of reporting prices), then the average of the “Pink Sheet” quotes
for the five (5) Trading Days preceding such date of determination, or (d) if
the Common Stock is not then publicly traded the fair market value of a share of
Common Stock as determined by an Independent Appraiser selected in good faith by
the Majority Holders; provided, however, that the Issuer, after receipt of the
determination by such Independent Appraiser, shall have the right to select an
additional Independent Appraiser, in which case, the fair market value shall be
equal to the average of the determinations by each such Independent Appraiser;
and provided, further that all determinations of the Per Share Market Value
shall be appropriately adjusted for any stock dividends, stock splits or other
similar transactions during such period. The determination of fair
market value by an Independent Appraiser shall be based upon the fair market
value of the Issuer determined on a going concern basis as between a willing
buyer and a willing seller and taking into account all relevant factors
determinative of value, and shall be final and binding on all
parties.
“Private Placement” means the private
placement by the Company of up to $2,000,000 (subject to an over-allotment
option of 25%) worth of Units consisting of shares of the Company’s Common Stock
and Warrants offered pursuant to a Private Placement Memorandum dated September
15, 2009, as amended or supplemented.
“Securities”
means any debt or equity securities of the Issuer, whether now or hereafter
authorized, any instrument convertible into or exchangeable for Securities or a
Security, and any option, warrant or other right to purchase or acquire any
Security. “Security” means one of the Securities.
“Trading Day” means any day during
which The New York Stock Exchange shall be open for business.
“Warrant Price” initially means twenty
five cents ($0.25) as such price may be adjusted from time to time as shall
result from the adjustments specified in this Warrant, including Section 4
hereto.
“Warrant Share Number” means at any
time the aggregate number of shares of Warrant Stock which may at such time be
purchased upon exercise of this Warrant, after giving effect to all prior
adjustments and increases to such number made or required to be made under the
terms hereof.
“Warrant Stock” means Common Stock
issuable upon exercise of any Warrant or Warrants or otherwise issuable pursuant
to any Warrant or Warrants.
“Warrants” means, collectively, (A) the
warrants to purchase shares of Common Stock issued pursuant to and in connection
with the Offering, and (B) any other warrants of like tenor issued in
substitution or exchange for any of the foregoing Warrants.
8. Amendment and
Waiver. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by a
written instrument or written instruments executed by the Issuer and the
Majority Holders; provided, however, that no such amendment or waiver shall
reduce the Warrant Share Number, increase the Warrant Price, shorten the period
during which this Warrant may be exercised or modify any provision of this
Section 8 without the consent of the Holder of this Warrant. No
consideration shall be offered or paid to any person to amend or consent to a
waiver or modification of any provision of this Warrant unless the same
consideration is also offered to all holders of the Warrants.
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9. Governing Law;
Jurisdiction. This Warrant shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction. This
Warrant shall not be interpreted or construed with any presumption against the
party causing this Warrant to be drafted. The Issuer and the Holder
agree that venue for any dispute arising under this Warrant will lie exclusively
in the state or federal courts located in the State of Delaware, and the parties
irrevocably waive any right to raise forum non conveniens or any other argument
that Delaware is not the proper venue. The Issuer and the Holder
irrevocably consent to personal jurisdiction in the state and federal courts of
the state of Delaware. The Issuer and the Holder consent to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Warrant and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing in this Section 9 shall affect or limit
any right to serve process in any other manner permitted by law. The
parties hereby waive all rights to a trial by jury.
10. Notices. Any
notice, demand, request, waiver or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
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If to the Issuer:
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0000
Xxxx Xxx., Xxxxx 0000
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X.X.
Xxx 000000
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Xxxx
Xxxx, XX 00000
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If to the Holder:
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___________________________________________
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___________________________________________
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___________________________________________
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Any party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
11. Remedies. The
Issuer stipulates that the remedies at law of the Holder of this Warrant in the
event of any default or threatened default by the Issuer in the performance of
or compliance with any of the terms of this Warrant are not and will not be
adequate and that, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
12. Successors and
Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of the
Issuer, the Holder hereof and (to the extent provided herein) the Holders of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
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13. Modification and
Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision
hereof is found to be unenforceable, then such provision shall be deemed
modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect the
other provisions of this Warrant, but this Warrant shall be construed as if such
unenforceable provision had never been contained herein.
14. Headings. The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
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IN WITNESS WHEREOF, the Issuer has
executed this Warrant as of the day and year first above written.
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By:
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Name:
Xxxxx X. Xxxxxxxx
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Title: CEO
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WARRANT
EXERCISE FORM
The undersigned _______________,
pursuant to the provisions of the within Warrant, hereby elects to purchase
_____ shares of Common Stock of SpectrumDNA, Inc. covered by the within
Warrant.
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Dated:
_________________
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Signature:
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Address:
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Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: ________________
ASSIGNMENT
FOR VALUE RECEIVED, _________________
hereby sells, assigns and transfers unto __________________ the within Warrant
and all rights evidenced thereby and does irrevocably constitute and appoint
_____________, attorney, to transfer the said Warrant on the books of the within
named corporation.
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Dated:
_________________
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Signature:
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|||
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Address:
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PARTIAL
ASSIGNMENT
FOR VALUE RECEIVED, _________________
hereby sells, assigns and transfers unto __________________ the right to
purchase _________ shares of Warrant Stock evidenced by the within Warrant
together with all rights therein, and does irrevocably constitute and appoint
___________________, attorney, to transfer that part of the said Warrant on the
books of the within named corporation.
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Signature:
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||||
FOR USE
BY THE ISSUER ONLY:
This
Warrant No. ___ canceled (or transferred or exchanged) this _____ day of
___________, _____, shares of Common Stock issued therefor in the name of
_______________, Warrant No. _____ issued for ____ shares of Common Stock in the
name of _______________.
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