Contract
Exhibit
4.4
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT,
OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF
THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
Number
of
shares: Up to 83,400
Holder:
Guerrilla
XXX Partners
000
Xxxx Xxx.
Xxx
Xxxx, XX 00000
Expiration
Date: May 18, 2009
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, Guerrilla
XXX Partners ,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the Company
up
to
41,700
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and through
and
including 5:00 p.m. New York City time on May 17, 2009 (the “Expiration Date”),
and subject to the following terms and conditions:
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The Company
may
deem and treat the registered Warrant Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or nay distribution to
the
Warrant Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant Holder
is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant
or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that
this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that may be
issued upon the exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further warrants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient number
of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant in
the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or transfer,
a
new warrant to purchase Common Stock, in substantially the same form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed
the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to
the
office of the Company specified in or pursuant to Section 9 for one or more
New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant
will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
9,
and upon payment and delivery of the Exercise Price per Warrant Share multiplied
by the number of Warrant Shares that the Warrant Holder intends to purchase
hereunder, in lawful money of the United States of America, in cash or by
certified or official bank check or checks, to the Company, all as specified
by
the Warrant Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 7 business days after the Date of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer described
in the legend set forth on the face of this Warrant), a share certificate of
Company common stock for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated
by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
c.
This
Warrant shall be exercisable at any time and from time to time for such number
of Warrant Shares as is indicated in the attached Form of Election To Purchase.
If less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company shall issue or cause to be issued, at
its
expense, a New Warrant utilizing this form of Warrant evidencing the right
to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant may,
at
its election exercised in its sole discretion, exercise this Warrant in whole
or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1) year a
Cashless Exercise. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until May 17, 2005
requiring the automatic exercise if during the period commencing one year from
the date of issuance of each Warrant at any closing public market price of
the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise, in
whole
, this Warrant within ten (10) days; or (ii) notify the Company of its intent
to
transfer this Warrant pursuant to Section 4 of this Warrant. In the event that
the Holder elects to transfer this Warrant pursuant to Section
4
of this Warrant, then the subsequent holder of this Warrant must exercise
this Warrant
on or before the thirtieth (30) day after notification of intent to transfer
this Warrant.
In the event that this Warrant is exercised, the Holder must deliver to the
Company
at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx;
with a copy to Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000 on or before 3:00 p.m., Eastern Time, on the required
date,
(i) Form of Election to Purchase properly executed and completed by Holder
or an authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal
to
the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified
in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise this
Warrant within ten (10) days from receipt of the Automatic Exercise Notice
or,
in the event
that this Warrant has been transferred pursuant to Section 4 of this Warrant,
the subsequent
holder of this Warrant does not exercise this Warrant within thirty (30) days
after
notification of intent to transfer this Warrant, then this Warrant will
expire.
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock or
other
securities at the time issuable upon exercise of this Warrant shall be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time after
the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any adjustment
or readjustment in the price or kind of securities issuable on the exercise
of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed
by
the Board of Directors of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
d. Adjustments
due to certain EBITDA projections
In the
event the Company earns less than nineteen cents ($.19) per share EBITDA on
a
per share basis which calculation is based upon primary shares outstanding
on
December 31, 2004 as reported for the fiscal year ended December 31, 2004,
(hereafter the “2004 EBITDA”), the warrant Exercise Price per Share shall be
reduced proportionately by 0% if the 0000 XXXXXX are nineteen cents ($.19)
per
share and by up to 99% if the 0000 XXXXXX are less than $.001 per share.
Likewise, the warrant price shall be proportionately increased as the 2004
EBITDA exceeds nineteen cents ($.19); the limit of said increase shall be two
(2) times the Exercise Price per Share. . For example, if the Company earns
seventeen point one cents ($.171) per share EBITDA, then the per share warrant
exercise price shall be reduced by 10%. Likewise, if the Company earns twenty
point nine cents ($.209) EBITDA per share than the warrant exercise price shall
be increased by 10%. Any such reduction or increase shall be made at the time
the December 31, 2004 financial results are reported and shall be made, starting
from the exercise price of the warrants being exercised at that time, and shall
be cumulative upon any other changes to the exercise price of the warrant that
may already have been made.
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of
this
Warrant so presented. If any fraction of a Warrant Share would, except for
the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; (iii) on
the
date delivered by an overnight courier service; or (iv) on the third business
day after it is mailed by registered or certified mail, return receipt requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech, Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
With
a
copy to:
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
________________
________________
________________
________________
________________
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. This Warrant may be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy
or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:
_____________________
Name:
___________________
Title:
____________________
COMMON
STOCK PURCHASE WARRANT
Page
8 of 9
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to Purchase,
the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________ in cash
or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
___________________________
___________________________
___________________________
(Please
print name and address)
_________________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall not be all
of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
________________________
________________________
________________________
(Please
print name and address)
Dated:
________________
Name
of
Warrant Holder:
(Print)
_________________________
(By:)
__________________________
(Name:)
________________________
(Title:)_________________________
Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant
COMMON
STOCK PURCHASE WARRANT
Page 9 of
9
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT,
OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF
THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
COMMON
STOCK PURCHASE WARRANT
Number
of
shares: Up to 716,600
Holder:
Guerrilla Partners LP
000
Xxxx Xxx.
Xxx
Xxxx, XX 00000
Expiration
Date: May 18, 2009
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, Guerrilla
Partners LP ,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the Company
up
to 358,300
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and through
and
including 5:00 p.m. New York City time on May 17, 2009 (the “Expiration Date”),
and subject to the following terms and conditions:
COMMON
STOCK PURCHASE WARRANT
Page
1 of
9
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The Company
may
deem and treat the registered Warrant Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or nay distribution to
the
Warrant Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant Holder
is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant
or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that
this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that may be
issued upon the exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further warrants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient number
of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
COMMON
STOCK PURCHASE WARRANT
Page
2 of
9
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant in
the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or transfer,
a
new warrant to purchase Common Stock, in substantially the same form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed
the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to
the
office of the Company specified in or pursuant to Section 9 for one or more
New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant
will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
9,
and upon payment and delivery of the Exercise Price per Warrant Share multiplied
by the number of Warrant Shares that the Warrant Holder intends to purchase
hereunder, in lawful money of the United States of America, in cash or by
certified or official bank check or checks, to the Company, all as specified
by
the Warrant Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 7 business days after the Date of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer described
in the legend set forth on the face of this Warrant), a share certificate of
Company common stock for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated
by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
COMMON
STOCK PURCHASE WARRANT
Page
3 of
9
c.
This
Warrant shall be exercisable at any time and from time to time for such number
of Warrant Shares as is indicated in the attached Form of Election To Purchase.
If less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company shall issue or cause to be issued, at
its
expense, a New Warrant utilizing this form of Warrant evidencing the right
to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant may,
at
its election exercised in its sole discretion, exercise this Warrant in whole
or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1) year a
Cashless Exercise. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until May 17, 2005
requiring the automatic exercise if during the period commencing one year from
the date of issuance of each Warrant at any closing public market price of
the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise, in
whole
, this Warrant within ten (10) days; or (ii) notify the Company of its intent
to
transfer this Warrant pursuant to Section 4 of this Warrant. In the event that
the Holder elects to transfer this Warrant pursuant to Section
4
of this Warrant, then the subsequent holder of this Warrant must exercise
this Warrant
on or before the thirtieth (30) day after notification of intent to transfer
this Warrant.
In the event that this Warrant is exercised, the Holder must deliver to the
Company
at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx;
with a copy to Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000 on or before 3:00 p.m., Eastern Time, on the required
date,
(i) Form of Election to Purchase properly executed and completed by Holder
or an authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal
to
the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified
in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise this
Warrant within ten (10) days from receipt of the Automatic Exercise Notice
or,
in the event
that this Warrant has been transferred pursuant to Section 4 of this Warrant,
the subsequent
holder of this Warrant does not exercise this Warrant within thirty (30) days
after
notification of intent to transfer this Warrant, then this Warrant will
expire.
COMMON
STOCK PURCHASE WARRANT
Page
4 of
9
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock or
other
securities at the time issuable upon exercise of this Warrant shall be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time after
the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any adjustment
or readjustment in the price or kind of securities issuable on the exercise
of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed
by
the Board of Directors of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
COMMON
STOCK PURCHASE WARRANT
Page
5 of
9
d. Adjustments
due to certain EBITDA projections
In the
event the Company earns less than nineteen cents ($.19) per share EBITDA on
a
per share basis which calculation is based upon primary shares outstanding
on
December 31, 2004 as reported for the fiscal year ended December 31, 2004,
(hereafter the “2004 EBITDA”), the warrant Exercise Price per Share shall be
reduced proportionately by 0% if the 0000 XXXXXX are nineteen cents ($.19)
per
share and by up to 99% if the 0000 XXXXXX are less than $.001 per share.
Likewise, the warrant price shall be proportionately increased as the 2004
EBITDA exceeds nineteen cents ($.19); the limit of said increase shall be two
(2) times the Exercise Price per Share. . For example, if the Company earns
seventeen point one cents ($.171) per share EBITDA, then the per share warrant
exercise price shall be reduced by 10%. Likewise, if the Company earns twenty
point nine cents ($.209) EBITDA per share than the warrant exercise price shall
be increased by 10%. Any such reduction or increase shall be made at the time
the December 31, 2004 financial results are reported and shall be made, starting
from the exercise price of the warrants being exercised at that time, and shall
be cumulative upon any other changes to the exercise price of the warrant that
may already have been made.
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of
this
Warrant so presented. If any fraction of a Warrant Share would, except for
the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; (iii) on
the
date delivered by an overnight courier service; or (iv) on the third business
day after it is mailed by registered or certified mail, return receipt requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech, Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
With
a
copy to:
COMMON
STOCK PURCHASE WARRANT
Page
6 of
9
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
__________________________
__________________________
__________________________
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. This Warrant may be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy
or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
COMMON
STOCK PURCHASE WARRANT
Page
7 of
9
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:
______________________
Name:
____________________
Title:
____________________
COMMON
STOCK PURCHASE WARRANT
Page
8 of
9
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to Purchase,
the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________ in cash
or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
__________________________
__________________________
__________________________
(Please
print name and address)
______________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall not be all
of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
_________________________
_________________________
_________________________
(Please
print name and address)
Dated:
___________________
Name
of
Warrant Holder:
(Print)
_____________________
(By:)
______________________
(Name:)
_____________________
(Title:)______________________
Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant
COMMON
STOCK PURCHASE
WARRANT
Page 9
of 9
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT,
OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF
THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
COMMON
STOCK PURCHASE WARRANT
Number
of
shares: Up to 116,600
Holder:
Odin
Partners LP
000
Xxxx Xxxxxx Xxxxx 000
Xxx
Xxxx, XX 00000
Expiration
Date: May 18, 2009
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, Odin
Partners LP ,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the Company up
to 58,300
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and through
and
including 5:00 p.m. New York City time on May 17, 2009 (the “Expiration Date”),
and subject to the following terms and conditions:
COMMON
STOCK PURCHASE WARRANT
Page
1 of 9
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The Company
may
deem and treat the registered Warrant Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or nay distribution to
the
Warrant Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant Holder
is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant
or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that
this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that may be
issued upon the exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further warrants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient number
of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
COMMON
STOCK PURCHASE WARRANT
Page
2 of 9
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant in
the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or transfer,
a
new warrant to purchase Common Stock, in substantially the same form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed
the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to
the
office of the Company specified in or pursuant to Section 9 for one or more
New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant
will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
9,
and upon payment and delivery of the Exercise Price per Warrant Share multiplied
by the number of Warrant Shares that the Warrant Holder intends to purchase
hereunder, in lawful money of the United States of America, in cash or by
certified or official bank check or checks, to the Company, all as specified
by
the Warrant Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 7 business days after the Date of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer described
in the legend set forth on the face of this Warrant), a share certificate of
Company common stock for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated
by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
COMMON
STOCK PURCHASE WARRANT
Page
3 of 9
c.
This
Warrant shall be exercisable at any time and from time to time for such number
of Warrant Shares as is indicated in the attached Form of Election To Purchase.
If less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company shall issue or cause to be issued, at
its
expense, a New Warrant utilizing this form of Warrant evidencing the right
to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant may,
at
its election exercised in its sole discretion, exercise this Warrant in whole
or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1) year a
Cashless Exercise. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until May 17, 2005
requiring the automatic exercise if during the period commencing one year from
the date of issuance of each Warrant at any closing public market price of
the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise, in
whole
, this Warrant within ten (10) days; or (ii) notify the Company of its intent
to
transfer this Warrant pursuant to Section 4 of this Warrant. In the event that
the Holder elects to transfer this Warrant pursuant to Section
4
of this Warrant, then the subsequent holder of this Warrant must exercise this
Warrant
on or before the thirtieth (30) day after notification of intent to transfer
this Warrant.
In the event that this Warrant is exercised, the Holder must deliver to the
Company
at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx;
with a copy to Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000 on or before 3:00 p.m., Eastern Time, on the required
date,
(i) Form of Election to Purchase properly executed and completed by Holder
or an authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal
to
the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified
in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise this
Warrant within ten (10) days from receipt of the Automatic Exercise Notice
or,
in the event
that this Warrant has been transferred pursuant to Section 4 of this Warrant,
the subsequent
holder of this Warrant does not exercise this Warrant within thirty (30) days
after
notification of intent to transfer this Warrant, then this Warrant will
expire.
COMMON
STOCK PURCHASE WARRANT
Page
4 of 9
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock or
other
securities at the time issuable upon exercise of this Warrant shall be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time after
the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any adjustment
or readjustment in the price or kind of securities issuable on the exercise
of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed
by
the Board of Directors of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
COMMON
STOCK PURCHASE WARRANT
Page
5 of 9
d. Adjustments
due to certain EBITDA projections
In the
event the Company earns less than nineteen cents ($.19) per share EBITDA on
a
per share basis which calculation is based upon primary shares outstanding
on
December 31, 2004 as reported for the fiscal year ended December 31, 2004,
(hereafter the “2004 EBITDA”), the warrant Exercise Price per Share shall be
reduced proportionately by 0% if the 0000 XXXXXX are nineteen cents ($.19)
per
share and by up to 99% if the 0000 XXXXXX are less than $.001 per share.
Likewise, the warrant price shall be proportionately increased as the 2004
EBITDA exceeds nineteen cents ($.19); the limit of said increase shall be two
(2) times the Exercise Price per Share. . For example, if the Company earns
seventeen point one cents ($.171) per share EBITDA, then the per share warrant
exercise price shall be reduced by 10%. Likewise, if the Company earns twenty
point nine cents ($.209) EBITDA per share than the warrant exercise price shall
be increased by 10%. Any such reduction or increase shall be made at the time
the December 31, 2004 financial results are reported and shall be made, starting
from the exercise price of the warrants being exercised at that time, and shall
be cumulative upon any other changes to the exercise price of the warrant that
may already have been made.
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of
this
Warrant so presented. If any fraction of a Warrant Share would, except for
the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; (iii) on
the
date delivered by an overnight courier service; or (iv) on the third business
day after it is mailed by registered or certified mail, return receipt requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech, Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
COMMON
STOCK PURCHASE WARRANT
Page
6 of 9
With
a
copy to:
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
______________________
______________________
______________________
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. This Warrant may be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy
or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
COMMON
STOCK PURCHASE WARRANT
Page
7 of 9
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:_____________________
Name:
__________________
Title:
___________________
COMMON
STOCK PURCHASE WARRANT
Page
8 of 9
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to Purchase,
the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________ in cash
or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
_______________________
_______________________
_______________________
(Please
print name and address)
______________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall not be all
of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
(Please
print name and address)
Dated:
_________________ Name
of
Warrant Holder:
(Print)
___________________
(By:)
_____________________
(Name:)
___________________
(Title:)
____________________
Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant
COMMON
STOCK PURCHASE
WARRANT
Page 9
of 9
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT,
OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF
THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
AMENDED
COMMON STOCK PURCHASE WARRANT
Number
of
shares: Up to 41,700
Holder:
Guerrilla XXX Partners
000
Xxxx Xxx.
Xxx
Xxxx, XX 00000
Expiration
Date: January 31, 2005
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, Guerrilla
XXX Partners ,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the Company
up
to 41,700
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and through
and
including 5:00 p.m. New York City time on January 31, 2005 (the “Expiration
Date”), and subject to the following terms and conditions:
COMMON
STOCK PURCHASE WARRANT
Page
1 of
9
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The Company
may
deem and treat the registered Warrant Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or nay distribution to
the
Warrant Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant Holder
is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant
or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that
this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that may be
issued upon the exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further warrants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient number
of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
Page
2 of
9
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant in
the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or transfer,
a
new warrant to purchase Common Stock, in substantially the same form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed
the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to
the
office of the Company specified in or pursuant to Section 9 for one or more
New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant
will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
9,
and upon payment and delivery of the Exercise Price per Warrant Share multiplied
by the number of Warrant Shares that the Warrant Holder intends to purchase
hereunder, in lawful money of the United States of America, in cash or by
certified or official bank check or checks, to the Company, all as specified
by
the Warrant Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 7 business days after the Date of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer described
in the legend set forth on the face of this Warrant), a share certificate of
Company common stock for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated
by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
Page
3 of
9
c.
This
Warrant shall be exercisable at any time and from time to time for such number
of Warrant Shares as is indicated in the attached Form of Election To Purchase.
If less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company shall issue or cause to be issued, at
its
expense, a New Warrant utilizing this form of Warrant evidencing the right
to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant may,
at
its election exercised in its sole discretion, exercise this Warrant in whole
or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1) year a
Cashless Exercise. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until January 31, 2005
requiring the automatic exercise if the closing public market price of the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise, in
whole
, this Warrant within ten (10) days; or (ii) notify the Company of its intent
to
transfer this Warrant pursuant to Section 4 of this Warrant. In the event that
the Holder elects to transfer this Warrant pursuant to Section
4
of this Warrant, then the subsequent holder of this Warrant must exercise this
Warrant
on or before the thirtieth (30) day after notification of intent to transfer
this Warrant.
In the event that this Warrant is exercised, the Holder must deliver to the
Company
at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx;
with a copy to Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000 on or before 3:00 p.m., Eastern Time, on the required
date,
(i) Form of Election to Purchase properly executed and completed by Holder
or an authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal
to
the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified
in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise
this Warrant within ten (10) days from receipt of the Automatic Exercise Notice
or, in the event
that this Warrant has been transferred pursuant to Section 4 of this Warrant,
the subsequent
holder of this Warrant does not exercise this Warrant within thirty (30) days
after
notification of intent to transfer this Warrant, then this Warrant will
expire.
COMMON
STOCK PURCHASE WARRANT
Page
4 of
9
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock or
other
securities at the time issuable upon exercise of this Warrant shall be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time after
the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any adjustment
or readjustment in the price or kind of securities issuable on the exercise
of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed
by
the Board of Directors of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
Page
5 of
9
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of
this
Warrant so presented. If any fraction of a Warrant Share would, except for
the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; (iii) on
the
date delivered by an overnight courier service; or (iv) on the third business
day after it is mailed by registered or certified mail, return receipt requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech, Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
COMMON
STOCK PURCHASE WARRANT
Page
6 of
9
With
a
copy to:
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
____________________
____________________
COMMON
STOCK PURCHASE WARRANT
Page
7 of
9
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. This Warrant may be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy
or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:
_________________________
Name:
______________________
Title:
_______________________
COMMON
STOCK PURCHASE WARRANT
Page
8 of
9
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to Purchase,
the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________ in cash
or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
____________________
____________________
____________________
(Please
print name and address)
_____________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall not be all
of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
_______________________
_______________________
_______________________
(Please
print name and address)
Dated:
___________________
Name
of
Warrant Holder:
(Print)
____________________
(By:)
_____________________
(Name:)
____________________
(Title:)
______________________
Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant
Page 9
of 9
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT,
OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"), DATED
THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS OF
THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
AMENDED
COMMON STOCK PURCHASE WARRANT
Number
of
shares: Up to 358,300
Holder:
Guerrilla Partners LP
000
Xxxx Xxx.
Xxx
Xxxx, XX 00000
Expiration
Date: January 31, 2005
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, Guerrilla
Partners LP ,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the Company
up
to 358,300
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and through
and
including 5:00 p.m. New York City time on January 31, 2005 (the “Expiration
Date”), and subject to the following terms and conditions:
COMMON
STOCK PURCHASE WARRANT
Page
1 of 8
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The Company
may
deem and treat the registered Warrant Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or nay distribution to
the
Warrant Holder, and for all other purposes, and the Company shall not be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant Holder
is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant
or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that
this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that may be
issued upon the exercise of the rights represented by this Warrant will, when
issued upon such exercise, be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further warrants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved a sufficient number
of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
Page
2 of 8
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant in
the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or transfer,
a
new warrant to purchase Common Stock, in substantially the same form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed
the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to
the
office of the Company specified in or pursuant to Section 9 for one or more
New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant
will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
9,
and upon payment and delivery of the Exercise Price per Warrant Share multiplied
by the number of Warrant Shares that the Warrant Holder intends to purchase
hereunder, in lawful money of the United States of America, in cash or by
certified or official bank check or checks, to the Company, all as specified
by
the Warrant Holder in the Form of Election to Purchase, the Company shall
promptly (but in no event later than 7 business days after the Date of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate (subject to the restrictions on transfer described
in the legend set forth on the face of this Warrant), a share certificate of
Company common stock for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the 1933 Act. Any person so designated
by
the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
Page
3 of 8
c.
This
Warrant shall be exercisable at any time and from time to time for such number
of Warrant Shares as is indicated in the attached Form of Election To Purchase.
If less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company shall issue or cause to be issued, at
its
expense, a New Warrant utilizing this form of Warrant evidencing the right
to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant may,
at
its election exercised in its sole discretion, exercise this Warrant in whole
or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1) year a
Cashless Exercise. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until January 31, 2005
requiring the automatic exercise if the closing public market price of the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise, in
whole
, this Warrant within ten (10) days; or (ii) notify the Company of its intent
to
transfer this Warrant pursuant to Section 4 of this Warrant. In the event that
the Holder elects to transfer this Warrant pursuant to Section 4 of this
Warrant, then the subsequent holder of this Warrant must exercise this Warrant
on or before the thirtieth (30) day after notification of intent to transfer
this Warrant. In the event that this Warrant is exercised, the Holder must
deliver to the Company at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx; with a copy to
Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000
on or before 3:00 p.m., Eastern Time, on the required date, (i) Form of
Election to Purchase properly executed and completed by Holder or an authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal to the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise this Warrant within ten
(10) days from receipt of the Automatic Exercise Notice or, in the event that
this Warrant has been transferred pursuant to Section 4 of this Warrant, the
subsequent holder of this Warrant does not exercise this Warrant within thirty
(30) days after notification of intent to transfer this Warrant, then this
Warrant will expire.
Page
4 of 8
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable upon
exercise of this Warrant and the Exercise Price therefor, are subject to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock or
other
securities at the time issuable upon exercise of this Warrant shall be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time after
the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any adjustment
or readjustment in the price or kind of securities issuable on the exercise
of
this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed
by
the Board of Directors of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
Page
5 of 8
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of
this
Warrant so presented. If any fraction of a Warrant Share would, except for
the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; (iii) on
the
date delivered by an overnight courier service; or (iv) on the third business
day after it is mailed by registered or certified mail, return receipt requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech, Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
With
a
copy to:
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
_____________________
_____________________
_____________________
Page
6 of 8
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. This Warrant may be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy
or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:
______________________
Name:
___________________
Title:
____________________
COMMON
STOCK PURCHASE WARRANT
Page
7 of 8
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to Purchase,
the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________ in cash
or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
____________________
____________________
____________________
(Please
print name and address)
_____________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall not be
all of
the shares of Common Stock which the undersigned is entitled to purchase
in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the
shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be
issued
in the name of and delivered to:
_______________________
_______________________
_______________________
(Please
print name and address)
Dated:
___________________
Name
of
Warrant Holder:
(Print)
____________________
(By:)
_____________________
(Name:)
____________________
(Title:)
______________________
Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant
COMMON
STOCK PURCHASE WARRANT
Page 8
of 8
THIS
COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS
COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY
THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO
THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, OR
(C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE AGREEMENT"),
DATED THE
DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS
PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE
PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE
RIGHTS OF THE
HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE
COMPANY.
---------------------------------------
WindsorTech,
Inc.
AMENDED
COMMON STOCK PURCHASE WARRANT
Number
of
shares: Up to 58,300
|
Holder:
|
Odin
Partners LP
|
|
|
000
Xxxx Xxx. Xxxxx 000
|
||
|
Xxx
Xxxx, XX 00000
|
Expiration
Date: January 31, 2005
Exercise
Price per Share: $1.50
WindsorTech,
a company organized and existing under the laws of the State of Delaware
(the
“Company”),
hereby certifies that, for value received, Odin
Partners LP,
or
its
registered assigns (the “Warrant
Holder”),
is
entitled, subject to the terms set forth below, to purchase from the
Company up
to 58,300
shares
(the “Warrant
Shares”)
of
common stock, $0.001 par value (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at
$1.50 (the “Exercise
Price”),
at
any time and from time to time from and after the date thereof and
through and
including 5:00 p.m. New York City time on January 31, 2005 (the “Expiration
Date”), and subject to the following terms and conditions:
COMMON
STOCK PURCHASE WARRANT
PAGE 1
OF
8
1. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by
the Company
for that purpose (the “Warrant
Register”),
in
the name of the record Warrant Holder hereof from time to time. The
Company may
deem and treat the registered Warrant Holder of this Warrant as the
absolute
owner hereof for the purpose of any exercise hereof or nay distribution
to the
Warrant Holder, and for all other purposes, and the Company shall not
be
affected by notice to the contrary.
2. Investment
Representation.
The
Warrant Holder by accepting this Warrant represents that the Warrant
Holder is
acquiring this Warrant for its own account or the account of an affiliate
for
investment purposes and not with the view to any offering or distribution
and
that the Warrant Holder will not sell or otherwise dispose of this
Warrant or
the underlying Warrant Shares in violation of applicable securities
laws. The
Warrant Holder acknowledges that the certificates representing any
Warrant
Shares will bear a legend indicating that they have not been registered
under
the United States Securities Act of 1933, as amended (the “1933
Act”)
and
may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state
securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to
the
exemption from the registration requirements of the 1933 Act afforded
by
Regulation S thereunder, the Warrant Holder acknowledges and covenants
that this
Warrant may not be exercised by or on behalf of a Person during the
one year
distribution compliance period (as defined in Regulation S) following
the date
hereof. “Person”
means an
individual, partnership, firm, limited liability company, trust, joint
venture,
association, corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares.
The
Company represents and warrants that this Warrant has been duly authorized
and
validly issued and warrants and agrees that all of Common Stock that
may be
issued upon the exercise of the rights represented by this Warrant
will, when
issued upon such exercise, be duly authorized, validly issued, fully
paid and
non-assessable and free from all taxes, liens and charges with respect
to the
issue thereof. The Company further warrants and agrees that during
the period
within which the rights represented by this Warrant may be exercised,
the
Company will at all times have authorized and reserved a sufficient
number of
Common Stock to provide for the exercise of the rights represented
by this
Warrant.
COMMON
STOCK PURCHASE WARRANT
PAGE 2
OF
8
| 4. |
Registration
of Transfers and Exchange of
Warrants.
|
a.
Subject
to compliance with the legend set forth on the face of this Warrant,
the Company
shall register the transfer of any portion of this Warrant in the Warrant
in the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company at the office
specified in or pursuant to Section 9. Upon any such registration or
transfer, a
new warrant to purchase Common Stock, in substantially the same form
of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued
to the
transferee and a New Warrant evidencing the remaining portion of this
Warrant
not so transferred, if any, shall be issued to the transferring Warrant
Holder.
The acceptance of the New Warrant by the transferee thereof shall be
deemed the
acceptance of such transferee of all of the rights and obligations
of a Warrant
Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder
to the
office of the Company specified in or pursuant to Section 9 for one
or more New
Warrants, evidencing in the aggregate the right to purchase the number
of
Warrant Shares which may then be purchased hereunder. Any such New
Warrant will
be dated the date of such exchange.
| 5. |
Exercise
of Warrants.
|
a.
Upon
surrender of this Warrant with the Form of Election to Purchase attached
hereto
duly completed and signed to the Company, at its address set forth
in Section 9,
and upon payment and delivery of the Exercise Price per Warrant Share
multiplied
by the number of Warrant Shares that the Warrant Holder intends to
purchase
hereunder, in lawful money of the United States of America, in cash
or by
certified or official bank check or checks, to the Company, all as
specified by
the Warrant Holder in the Form of Election to Purchase, the Company
shall
promptly (but in no event later than 7 business days after the Date
of Exercise
[as defined herein]) issue or cause to be issued and cause to be delivered
to or
upon the written order of the Warrant Holder and in such name or names
as the
Warrant Holder may designate (subject to the restrictions on transfer
described
in the legend set forth on the face of this Warrant), a share certificate
of
Company common stock for the Warrant Shares issuable upon such exercise,
with
such restrictive legend as required by the 1933 Act. Any person so
designated by
the Warrant Holder to receive Warrant Shares shall be deemed to have
become
holder of record of such Warrant Shares as of the Date of Exercise
of this
Warrant.
b.
A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election
to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for
the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
COMMON
STOCK PURCHASE WARRANT
PAGE 3
OF
8
c.
This
Warrant shall be exercisable at any time and from time to time for
such number
of Warrant Shares as is indicated in the attached Form of Election
To Purchase.
If less than all of the Warrant Shares which may be purchased under
this Warrant
are exercised at any time, the Company shall issue or cause to be issued,
at its
expense, a New Warrant utilizing this form of Warrant evidencing the
right to
purchase the remaining number of Warrant Shares for which no exercise
has been
evidenced by this Warrant.
d.
(i) Notwithstanding
anything contained herein to the contrary, the holder of this Warrant
may, at
its election exercised in its sole discretion, exercise this Warrant
in whole or
in part and, in lieu of making the cash payment otherwise contemplated
to be
made to the Company upon such exercise in payment of the Aggregate
Exercise
Price, elect instead to receive upon such exercise the “Net
Number”
of
shares of Common Stock determined according to the following formula
(a
“Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii)
For
purposes of the foregoing formula:
A=
the
total number shares with respect to which this Warrant is then being
exercised.
B=
the
last reported sale price (as reported by Bloomberg) of the Common Stock
on
immediately preceding the date of the Exercise Notice.
C=
the
Warrant Exercise Price then in effect at the time of such exercise.
(i). The
holder of this Warrant agrees not to elect for a period of one (1)
year a
Cashless Exercise. The holder of this Warrant also agrees not to elect
a
Cashless Exercise so long as there is an effective registration statement
for
the shares underlying this Warrant.
Call
by the Company.
This
Warrant contains a callable feature until January 31,
2005
requiring the automatic exercise if the closing public market price
of the
Company’s common stock is equal to or in excess of the callable price of $2.25
for a period of twenty (20) consecutive days and there is an effective
Registration Statement covering the shares of Common Stock underlying
this
Warrant (“Automatic Exercise”) during such twenty (20) consecutive day period.
Upon occurrence of the Automatic Exercise, the Company shall provide
the Holder
with notice of such Automatic Conversion (“Automatic Exercise Notice”). Upon
receipt of the Automatic Exercise Notice, the Holder must (i) exercise,
in whole
, this Warrant within ten (10) days; or (ii) notify the Company of
its intent to
transfer this Warrant pursuant to Section 4 of this Warrant. In the
event that
the Holder elects to transfer this Warrant pursuant to Section 4 of
this
Warrant, then the subsequent holder of this Warrant must exercise this
Warrant
on or before the thirtieth (30) day after notification of intent to
transfer
this Warrant. In the event that this Warrant is exercised, the Holder
must
deliver to the Company at its office at 00
Xxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xx Xxxxxxxx; with a copy to
Burger,
Trailor
& Xxxxxx, P.A., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx
00000
on or before 3:00 p.m., Eastern Time, on the required date, (i) Form of
Election to Purchase properly executed and completed by Holder or an
authorized
officer thereof, (ii) a check payable to the order of the Company, in an
amount equal to the product of the Exercise Price multiplied
by
the
number of Warrant Shares specified in the Exercise Notice, and
(iii) this Warrant. If the Holder does not exercise this Warrant within ten
(10) days from receipt of the Automatic Exercise Notice or, in the
event that
this Warrant has been transferred pursuant to Section 4 of this Warrant,
the
subsequent holder of this Warrant does not exercise this Warrant within
thirty
(30) days after notification of intent to transfer this Warrant, then
this
Warrant will expire.
COMMON
STOCK PURCHASE WARRANT
PAGE 4
OF
8
6. Adjustment
of Exercise Price and Number of Shares.
The
character of the shares of stock or other securities at the time issuable
upon
exercise of this Warrant and the Exercise Price therefor, are subject
to
adjustment upon the occurrence of the following events:
a. Adjustment
for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The
Exercise Price of this Warrant and the number of shares of Common Stock
or other
securities at the time issuable upon exercise of this Warrant shall
be
appropriately adjusted to reflect any stock dividend, stock split,
combination
of shares, reclassification, recapitalization or other similar event
affecting
the number of outstanding shares of stock or securities.
b. Adjustment
for Reorganization, Consolidation, Merger, Etc.
In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization,
in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being
hereinafter
referred to as a "Reorganization"),
then, in
each case, the holder of this Warrant, on exercise hereof at any time
after the
consummation or effective date of such Reorganization (the "Effective
Date"),
shall
receive, in lieu of the shares of stock or other securities at any
time issuable
upon the exercise of the Warrant issuable on such exercise prior to
the
Effective Date, the stock and other securities and property (including
cash) to
which such holder would have been entitled upon the Effective Date
if such
holder had exercised this Warrant immediately prior thereto (all subject
to
further adjustment as provided in this Warrant).
c.
Certificate
as to Adjustments.
In case
of any
adjustment
or readjustment in the price or kind of securities issuable on the
exercise of
this Warrant, the Company will promptly give written notice thereof
to the
holder of this Warrant in the form of a certificate, certified and
confirmed by
the Board of Directors of the Company, setting forth such adjustment
or
readjustment and showing in reasonable detail the facts upon which
such
adjustment or readjustment is based.
COMMON
STOCK PURCHASE WARRANT
PAGE 5
OF
8
7. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional
Warrant
Shares on the exercise of this Warrant. The number of full Warrant
Shares that
shall be issuable upon the exercise of this Warrant shall be computed
on the
basis of the aggregate number of Warrants Shares purchasable on exercise
of this
Warrant so presented. If any fraction of a Warrant Share would, except
for the
provisions of this Section 8, be issuable on the exercise of this Warrant,
the
Company shall, at its option, (i) pay an amount in cash equal to the
Exercise
Price multiplied by such fraction or (ii) round the number of Warrant
Shares
issuable, up to the next whole number.
8. Notice.
All
notices and other communications hereunder shall be in writing and
shall be
deemed to have been given (i) on the date they are delivered if delivered
in
person; (ii) on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation;
(iii) on the
date delivered by an overnight courier service; or (iv) on the third
business
day after it is mailed by registered or certified mail, return receipt
requested
with postage and other fees prepaid as follows:
If
to
the Company:
WindsorTech,
Inc.
00
Xxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
With
a
copy to:
Xxxx
X.
Xxxxxx, Esq.
Burger,
Trailor & Xxxxxx, P.A.
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone
Number: (000) 000-0000
Facsimile
Number: (000) 000-0000
If
to
the Warrant Holder:
_________________________________
_________________________________
_________________________________
COMMON
STOCK PURCHASE WARRANT
PAGE 6
OF
8
| 9. |
Miscellaneous.
|
a.
This
Warrant shall be binding on and inure to the benefit of the parties
hereto and
their respective successors and permitted assigns. This Warrant may
be amended
only in writing and signed by the Company and the Warrant Holder.
b.
Nothing
in this Warrant shall be construed to give to any person or corporation
other
than the Company and the Warrant Holder any legal or equitable right,
remedy or
cause of action under this Warrant; this Warrant shall be for the sole
and
exclusive benefit of the Company and the Warrant Holder.
c.
This
Warrant shall be governed by, construed and enforced in accordance
with the
internal laws of the State of New York without regard to the principles
of
conflicts of law thereof.
d.
The
headings herein are for convenience only, do not constitute a part
of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e.
In
case
any one or more of the provisions of this Warrant shall be invalid
or
unenforceable in any respect, the validity and enforceablilty of the
remaining
terms and provisions of this Warrant shall not in any way be affected
or
impaired thereby and the parties will attempt in good faith to agree
upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such
substitute
provision in this Warrant.
f.
The
Warrant Holder shall not, by virtue hereof, be entitled to any voting
or other
rights of a shareholder of the Company, either at law or equity, and
the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by the
authorized officer as of the date first above stated.
WindsorTech,
Inc.
By:______________________
Name:____________________
Title:_________________________
COMMON
STOCK PURCHASE WARRANT
PAGE
7 OF
8
FORM
OF ELECTION TO PURCHASE
(To
be
executed by the Warrant Holder to exercise the right to purchase shares
of
Common Stock under the foregoing Warrant)
To:
WindsorTech, Inc.
In
accordance with the Warrant enclosed with this Form of Election to
Purchase, the
undersigned hereby irrevocably elects to purchase ______________ shares
of
Common Stock (“Common Stock”), $0.001 par value, of WindsorTech, Inc. and
encloses one warrant and $
for each
Warrant Share being purchased or an aggregate of $________________
in cash or
certified or official bank check or checks, which sum represents the
aggregate
Exercise Price (as defined in the Warrant) together with any applicable
taxes
payable by the undersigned pursuant to the Warrant.
The
undersigned requests that certificates for the shares of Common Stock
issuable
upon this exercise be issued in the name of:
________________________________
________________________________
________________________________
(Please
print name and address)
________________________________
(Please
insert Social Security or Tax Identification Number)
If
the
number of shares of Common Stock issuable upon this exercise shall
not be all of
the shares of Common Stock which the undersigned is entitled to purchase
in
accordance with the enclosed Warrant, the undersigned requests that
a New
Warrant (as defined in the Warrant) evidencing the right to purchase
the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby
be issued
in the name of and delivered to:
________________________________
________________________________
________________________________
(Please
print name and address)
Dated:_____________ Name
of
Warrant Holder:
(Print)__________________________
(By:)___________________________
(Name:)________________________
(Title:)__________________________
Signature
must conform in all respects to name of
Warrant
Holder as specified on the face of the
Warrant
COMMON
STOCK PURCHASE WARRANT
PAGE 8
OF
8
