THIS WARRANT AND THE WARRANT SHARES (AS DEFINED HEREIN) WHICH MAY BE PURCHASED
UPON THE EXERCISE OF THIS WARRANT, HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE OR COMPARABLE SECURITIES LAW OF A
U.S. OR NON-U.S. JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH SALE, OFFER, TRANSFER OR DISPOSITION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY
APPLICABLE STATE OR COMPARABLE SECURITIES LAW OF A U.S. OR NON-U.S.
JURISDICTION.
December 22, 2005
(the "Effective Date")
To: Syntek Capital AG (the "Holder")
WARRANT
to purchase up to the aggregate number of
shares of common stock as detailed below of
m-Wise, Inc. (the "Company")
at a per share price as detailed below.
1. Warrant Shares, Exercise Price and Option Period.
1.1 Warrant Shares. This is to certify that the Holder specified above
and any permitted transferee, is entitled to purchase from the
Company, subject to the provisions of this Warrant, 5,263,158 shares
of common stock, par value $0.0017 per share, of the Company (the
"Warrant Shares") at an exercise price (the "Exercise Price") of
$0.19 per share.
1.2 Option Period. The Warrant may be exercised any time before the
third anniversary of the Effective Date (the "Option Period").
2. Exercise of Warrant
2.1. Partial Exercise. This Warrant may be exercised in whole or in part.
Should this Warrant be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver
a new Warrant evidencing the rights of the Holder to purchase the
balance of the shares purchasable hereunder in whole or in part.
2.2. Exercise. This Warrant shall be exercised by presentation and
surrender hereof to the Company at the principal office of the
Company, accompanied by: (i) a written notice of exercise in a form
appended hereto as Exhibit A (the "Exercise Notice"); and (ii)
payment to the Company, for the account of the Company, of the
Exercise Price for the number of Warrant Shares specified in such
notice.
The Exercise Price for the number of Warrant Shares specified in the
Exercise Notice shall be payable in immediately available funds.
2.3. Issuance of the Warrant Shares. Within seven business days following
presentation and surrender of the Exercise Notice accompanied by the
payment of the applicable Exercise Price pursuant to section 2.2,
the Company shall issue promptly to the Holder the shares to which
the Holder is entitled. Upon receipt by the Company of such notice
of exercise and the Exercise Price, the Holder shall be deemed to be
the holder of the shares issuable upon such exercise,
notwithstanding that the share transfer books of the Company may
then be closed and that certificates representing such shares shall
not then be actually delivered to the Holder. The Company shall pay
all of the applicable taxes and other charges that are payable by
the Company in connection with the issuance of the Warrant Shares
and the preparation and delivery of share certificates pursuant to
this Section 2 in the name of the Holder, but shall not pay any
taxes payable by the Holder by virtue of the holding, issuance,
exercise or sale of this Warrant or the Warrant Shares by the
Holder.
3. Exchange or Loss of Warrant
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant, if
mutilated, the Company will execute and deliver a new Warrant of like
tenor and date.
4. Adjustment
The Warrant Shares shall be adjusted to prevent dilution in such fashion
that the Holder of Warrant Shares shall retain those rights and privileges
which such Holder would have enjoyed had the Warrant been exercised
immediately prior to any stock dividend, stock split, merger,
recapitalization, reorganization, or other corporate change. Following the
occurrence of any event set forth in the preceding sentence, the number of
Warrant Shares issuable upon the exercise of this Warrant shall be
adjusted and the Company shall issue to the Holder a new or additional
Warrant to reflect such change in the number of Warrant Shares. No
adjustment shall be made by reason of the exercise or partial exercise of
the Warrant.
5. Transfer
Subject to the Holder complying with any applicable securities laws, this
Warrant and/or any rights hereunder may be assigned, conveyed or
transferred, in whole or in part, by the Holder, upon notice to the
Company. The rights and obligations of the Company and the Holder under
this Warrant shall be binding upon and benefit their respective
successors, assigns, heirs, administrators and transferees.
6. Rights of the Holder
6.1. Equitable Relief. Without limiting the foregoing or any remedies
available to the Holder, the Holder will be entitled to specific
performance of the obligations hereunder, and injunctive relief
against actual or threatened violations of the obligations of any
person or entity subject to this Warrant.
6.2. No Stockholder Rights. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, including
any voting rights, prior to exercise of the Warrants resulting in
the purchase of Warrant Shares.
7. Fractional Shares
No fractional shares shall be issued upon exercise of the Warrant and the
number of shares of common stock to be issued shall be rounded up or down
to the nearest whole share.
8. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to conflicts of laws
principles. Any dispute relating to or arising from this Agreement shall
be exclusively submitted to the competent courts in the district of
Delaware.
[m-Wise - Syntek Warrant]
M-WISE, INC.
BY:
---------------------------------------
PRINTED NAME:
------------------------------
TITLE:
------------------------------------
Accepted and Agreed:
SYNTEK CAPITAL AG
BY:
---------------------------------------
PRINTED NAME:
------------------------------
TITLE:
------------------------------------
BY:
---------------------------------------
PRINTED NAME:
------------------------------
TITLE:
------------------------------------
Exhibit A
Exercise Notice
To: m-Wise, Inc. Date:
The undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby elects to purchase ___________ of the Warrant Shares pursuant to Section
2.2 of the attached Warrant, and herewith makes payment of $__________,
representing the full Exercise Price for such shares as provided for in such
Warrant.
Syntek Capital AG
By: ________________________________
Title:______________________________
