Contract
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER OR EXEMPTION FROM SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO HEMIWEDGE INDUSTRIES, INC. THAT
SUCH REGISTRATION IS NOT REQUIRED. A COPY OF THE WARRANT IS AVAILABLE
AT THE OFFICES OF THE COMPANY.
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Right
to Purchase 1,437,500 shares of Common
Stock
of Hemiwedge Industries, Inc. (subject to
adjustment
as provided herein)
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COMMON
STOCK PURCHASE WARRANT
Houston,
Texas
Issue
Date: June 30, 2010
HEMIWEDGE
INDUSTRIES, INC., a corporation organized under the laws of the State of
Delaware (the “Company”),
hereby certifies that, for value received, XXXX INVESTMENTS I, LLC, a Texas
limited liability company, or its assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company
at any time after June 30, 2010 (“Issue
Date”) until 5:00 p.m., Houston, Texas time, on the fifth anniversary of
the Issue Date (the “Expiration
Date”), up to 1,437,500 duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (“Warrant
Shares”) at
a per share purchase price of $0.10; provided, however, that if on
or before August 15 , 2010 the Loan (as defined in the Loan Agreement (defined
below) is either (A) paid in full or (B) sold by Lender to a third party for the
full outstanding balance thereof, than the number of Warrant Shares due Holder
shall be reduced by multiplying the amount of Warrant Shares issuable on the
Issue Date by 0.20. The aforedescribed purchase price per share, as
adjusted from time to time as herein provided, is referred to herein as the
“Purchase
Price.” The number and character of such shares of Common
Stock and the Purchase Price are subject to adjustment as provided
herein. The Company may reduce the Purchase Price without the consent
of the Holder. The term “Warrants” means this Warrant and the
other warrant issued pursuant to that certain Amended and Restated Loan
Agreement (the “Loan
Agreement”) dated as of June 30, 2010 by and among the Company, Hemiwedge
Valve Corporation and Eads Investment I, LLC (“Xxxx”)
and D. Xxxxxxx XxXxxxxxxx (“XxXxxxxxxx”,
together with Eads, the “Lender”). Terms
used and not otherwise defined herein shall have the meanings ascribed to them
in the Loan Agreement.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term “Company”
shall include Hemiwedge Industries, Inc. and any Person that shall succeed to or
assume the obligations of Hemiwedge Industries, Inc. hereunder.
(b) The
term “Common
Stock” includes (i) the Company’s Common Stock, $0.001 par value per
share, and (ii) any other securities into which or for which any of the
securities described in clause (i) above may be converted or exchanged pursuant
to a plan of recapitalization, reorganization, reclassification, merger, sale of
assets or otherwise.
(c) The
term “Person”
shall include an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or any federal, state, county or municipal
governmental or quasi-governmental agency, department, commission, board,
bureau, instrumentality or similar entity, foreign or domestic, having
jurisdiction over either the Company or any Holder.
(d) The
term “Other
Securities” refers to any stock (other than Common Stock) and other
securities of the Company or any other Person (i) that the Holder at any time
shall be entitled to receive, or shall have received, on the exercise of the
Warrant, in lieu of or in addition to Common Stock, and (ii) that at any time
shall be issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to the terms hereof.
1. Exercise of
Warrant.
1.1 Number of Shares Issuable upon
Exercise. From and after the Issue Date through and including
the Expiration Date, the Holder hereof shall be entitled to receive, upon
exercise of this Warrant in whole in accordance with the terms of Section 1.2 or upon
exercise of this Warrant in part in accordance with Section 1.3, shares
of Common Stock of the Company, subject to adjustment pursuant to Section
2.
1.2 Full
Exercise. Subject to Section 1.8, this
Warrant may be exercised in full by the Holder hereof by delivery of an original
or facsimile copy of the form of subscription attached as Exhibit A hereto (the
“Subscription
Form”) duly executed by such Holder and surrender of the original Warrant
within four (4) business days of exercise, to the Company at its principal
office or at the office of its Warrant Agent (as provided hereinafter),
accompanied by payment, in cash, by wire transfer, by certified or official bank
check payable to the order of the Company, or by cancellation of Warrant Shares,
with any such Warrant Shares so surrendered being credited against such payment
in an amount equal to the Fair Market Value thereof on the date of such
surrender, or by any combination of any of the foregoing methods, in the amount
obtained by multiplying (a) the number of shares of Common Stock for which this
Warrant is then exercisable (without giving effect to any adjustments thereof)
by (b) the Purchase Price then in effect.
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1.3 Partial
Exercise. Subject to Section 1.8, this
Warrant may be exercised in part (but not for a fractional share) by surrender
of this Warrant in the manner, including payment, provided in Section 1.2 except
that the amount payable by the Holder on such partial exercise shall be the
amount obtained by multiplying (a) the number of whole shares of Common Stock
designated by the Holder in the Subscription Form by (b) the Purchase Price then
in effect. Upon any such partial exercise, the Company, at its sole
expense, will forthwith issue and deliver to or upon the order of the Holder
hereof a new Warrant or Warrants of like tenor, dated the date hereof, in the
name of the Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may request, for the whole number of shares of Common
Stock for which such Warrant may still be exercised.
1.4 Fair Market
Value. Fair Market Value of a share of Common Stock as of a
particular date (the “Determination
Date”) shall mean:
(a) If
the Company’s Common Stock is traded on an exchange or is quoted on an automated
quotation system, then the closing or last sale price, respectively, reported
for the last trading day immediately preceding the Determination
Date;
(b) If
the Company’s Common Stock is not traded on an exchange or quoted on an
automated quotation system, but is traded in the over-the-counter market, then
the average of the closing sales prices reported for the last three trading days
immediately preceding the Determination Date;
(c) Except
as provided in clause (d) below, if the Company’s Common Stock is not publicly
traded, then as the Holder and the Company agree, without premium for control
and without discount for minority interests, illiquidity or restrictions on
transfer, or in the absence of such an agreement within fifteen (15) days of the
Determination Date, then by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by education and
training to pass on the matter to be decided and without premium for control and
without discount for minority interests, illiquidity or restrictions on
transfer; or
(d) If
the Determination Date is the date of a liquidation, dissolution or winding up,
or any event deemed to be a liquidation, dissolution or winding up pursuant to
the Company’s Certificate of Incorporation, as amended (the “Charter”),
then all amounts to be payable per share to holders of the Common Stock pursuant
to the Charter in the event of such liquidation, dissolution or winding up, plus
all other amounts to be payable per share in respect of the Common Stock in
liquidation under the Charter.
1.5 Company
Acknowledgment. The Company will, at the time of each exercise
of this Warrant, upon the request of the Holder hereof, acknowledge in writing
its continuing obligation to afford to such Holder all rights to which such
Holder shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to such Holder any such rights.
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1.6 Trustee for Warrant
Holders. In the event that a bank or trust company shall have
been appointed as trustee for the Holder of the Warrants pursuant to Section 2.3 or 2.4, such bank or
trust company shall have all the powers and duties of a Warrant Agent (as
hereinafter defined) and shall accept, in its own name for the account of the
Company or such successor person as may be entitled thereto, all amounts
otherwise payable to the Company or such successor, as the case may be, on
exercise of this Warrant pursuant to this Section
1.
1.7 Delivery of Stock Certificates, etc.
on Exercise. The Company agrees that the shares of Common
Stock purchased upon exercise of this Warrant shall be deemed to be issued to
the Holder hereof as the record owner of such shares as of the close of business
on the date on which this Warrant shall have been surrendered and payment made
for such shares as aforesaid. Notwithstanding the foregoing, the
Holder may, upon written notice delivered to the Company concurrently with the
surrender of this Warrant for exercise as provided in Section 1, elect that
the exercise of all or any portion of this Warrant be conditioned upon the
consummation of any transaction or event, in which case (a) such exercise shall
not be deemed to be effective unless and until the consummation of such
transaction or event occurs and (b) such exercise may be revoked by the Holder
at any time prior to the consummation of such transaction or
event. If such transaction or event is not consummated or is so
revoked, the Company shall promptly return the surrendered Warrant to such
Holder, unless otherwise instructed by such Holder. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within four (4) business days thereafter, the Company at its sole expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, (i) a certificate or certificates
for the number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which such Holder shall be
entitled on such exercise, plus, in lieu of any fractional share to which such
Holder would otherwise be entitled, one full share of Common Stock, together
with any other stock or other securities and property (including cash, where
applicable) to which such Holder is entitled upon such exercise pursuant to
Section 1 or
otherwise and (ii) in case such exercise is in part only, a new Warrant or
Warrants as set forth in Section
1.3.
1.8 Cashless
Exercise. In lieu of exercising this Warrant in the manner set
forth in Section
1.2 or 1.3 above, then the
Warrant may be exercised by surrender of the Warrant without payment of any
other consideration, commission or remuneration and by delivery of an original
or facsimile copy of the form of cashless exercise subscription attached as
Exhibit B
hereto (the “Cashless Exercise
Subscription Form”) duly executed by such Holder. The Holder
shall be entitled to receive the number of Warrant Shares equal to the quotient
determined by dividing [(A-B) x C] by A, where:
A = the
Fair Market Value of one share of Common Stock on the date of receipt of the
Cashless Exercise Subscription Form;
B = the
Purchase Price per share then in effect; and
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C =
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the
number of Warrant Shares issuable upon such exercise of the Warrant, or
part thereof, had the Warrant been exercised with a cash
payment.
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2. Adjustment of Warrant Shares Issuable
Upon Exercise.
2.1 General; Number of Warrant
Shares. The number of Warrant Shares that the Holder shall be
entitled to receive upon each exercise hereof shall be determined by multiplying
the number of Warrant Shares that would otherwise (but for the provisions of
this Section 2)
be issuable upon such exercise, as designated by the Holder pursuant to Section 1, by a
fraction (a) the numerator of which is the Purchase Price and (b) the
denominator of which is the Purchase Price in effect on the date of such
exercise.
2.2 Reorganization, Consolidation,
Merger, etc. In case at any time or from time to time, the
Company shall (i) effect a reorganization or reclassification of the Warrant
Shares or its Common Stock, (ii) consolidate with or merge into any other Person
and shall not be the continuing or surviving corporation of such consolidation
or merger, (iii) permit any other Person to consolidate with or merge into the
Company and the Company shall be the continuing or surviving Person but, in
connection with such consolidation or merger, the Warrant Shares or the Common
Stock shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (iv) transfer all or
substantially all of its properties or assets to any other Person, then, in each
such case, as a condition to the consummation of such a transaction, proper and
adequate provision shall be made by the Company whereby the Holder of this
Warrant, on the exercise hereof as provided in Section 1, at any
time after the consummation of such transaction, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation, the greatest amount of stock and other securities and property
(including cash) to which such Holder would have been entitled as an equity
holder upon such consummation if such Holder had so exercised this Warrant,
immediately prior thereto, all subject to further adjustment thereafter as
provided in this Section
2.
2.3 Dissolution. In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense (a) appoint a bank or trust company (a “Trustee”)
having its principal office in Houston, TX and otherwise reasonably satisfactory
to the Holder, as trustee for the Holder of the Warrants, pursuant to
documentation reasonably satisfactory to the Holder and (b) deliver or cause to
be delivered to such Trustee the stock and other securities and property
(including cash, where applicable) receivable by the Holder of the Warrants
after the effective date of such dissolution pursuant to this Section
2.
5
2.4 Continuation of
Terms. Upon any reorganization, reclassification,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 2, this
Warrant shall continue in full force and effect and the terms hereof shall be
applicable to the Other Securities and property (including cash, where
applicable) receivable upon the exercise of this Warrant after the consummation
of such reorganization, reclassification, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may be,
and shall be binding upon the issuer of any Other Securities, including, in the
case of any such transfer, the Person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant. In the event (a) this
Warrant does not continue in full force and effect after the consummation of the
transactions described in this Section 2, or (b) the
Holders do not receive an opinion of counsel for any Person (other than the
Company) that may be required to deliver any Other Securities and property
receivable upon the exercise of this Warrant as provided herein, which opinion
of counsel shall be reasonably satisfactory to such Holder, stating that this
Warrant shall thereafter continue in full force and effect and the terms hereof
shall be applicable to the Other Securities and property that such Person may be
required to deliver upon any exercise of this Warrant or the exercise of any
rights pursuant thereto, then the Company shall appoint a Trustee in accordance
with Section
2.3 and deliver to such Trustee all of the Company’s securities and
property (including cash, where applicable) receivable by the Holder of the
Warrants as contemplated by this Section
2.
2.5 Extraordinary Events Regarding Common
Stock. In the event that the Company shall (a) subdivide (by
any stock split, stock dividend, recapitalization or otherwise) its outstanding
shares of Common Stock into a greater number of shares of Common Stock or pays a
dividend or makes a distribution to holders of the shares of Common Stock in the
form of additional shares of Common Stock, or (b) combine its outstanding shares
of the Common Stock into a smaller number of shares of the Common Stock, then,
in each such event, the Purchase Price shall, simultaneously with the happening
of such event, be adjusted by multiplying the then Purchase Price by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Purchase Price then in
effect. The Purchase Price, as so adjusted, shall be readjusted in
the same manner upon the happening of any successive event or events described
herein in this Section
2.
3. Certificate as to
Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock (or Other Securities) issuable on the exercise of the
Warrants, the Company, at its sole expense, will promptly cause its Chief
Financial Officer or other appropriate designee to compute such adjustment or
readjustment and, upon written request of a Holder, cause independent certified
public accountants (which may be the regular auditors of the
Company) selected by the Company to verify such computation (other than any
computation of the Fair Market Value, which shall be determined in accordance
with the definition thereof), in each case, in accordance with the terms of
the Warrant, and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock (or Other
Securities) issued or sold or deemed to have been issued or sold, (b) the number
of shares of Common Stock (or Other Securities) outstanding or deemed to be
outstanding, and (c) the Purchase Price and the number of shares of Common Stock
to be received upon exercise of this Warrant, in effect immediately prior to
such adjustment or readjustment and as adjusted or readjusted as provided in
this Warrant. The Company will forthwith mail a copy of each such
certificate to the Holder of the Warrant. The Company will also keep
copies of all such reports at its chief executive office and will cause the same
to be available for inspection, upon reasonable notice to the Company, at such
office during normal business hours by any Holder or any prospective purchaser
of this Warrant designated by the Holder.
6
4. No Dilution or
Impairment. The Company shall not, by amendment of its Charter
or through any consolidation, merger, reorganization, reclassification, transfer
of assets, dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against dilution or
other impairment. Without limiting the generality of the foregoing,
the Company (a) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue the Warrant Shares upon
exercise of this Warrant and (b) will not take any action that results in any
adjustment of the Purchase Price if the total number of Warrant Shares issuable
upon exercise of the Warrant after such action would exceed the total number of
shares of Common Stock (or Other Securities, if applicable) then authorized by
its Charter and available for the purpose of issuance upon such
exercise.
5. Reservation of Stock, etc. Issuable
on Exercise of Warrant; Financial Statements. The Company will
at all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrants, all shares of Common Stock (or Other Securities) from
time to time issuable on the exercise of the Warrant. All Warrant
Shares issuable upon exercise of this Warrant shall be duly authorized and, when
issued upon such exercise, shall be validly issued and, in the case of shares,
fully paid and nonassessable, with no liability on the part of the Holders
thereof.
6. Assignment; Exchange of
Warrant. Subject to compliance with applicable securities
laws, this Warrant, and the rights evidenced hereby, may be transferred by any
registered holder hereof (a “Transferor”). On
the surrender for exchange of this Warrant, with the Transferor’s endorsement in
the form of Exhibit
C attached hereto (the “Transferor
Endorsement Form”), the Company, at its sole expense, but with payment by
the Transferor of any applicable transfer taxes, will issue and deliver to or on
the order of the Transferor thereof a new Warrant or Warrants of like tenor,
dated the date hereof, in the name of the Transferor and/or the transferee(s)
specified in such Transferor Endorsement Form (each a “Transferee”),
calling in the aggregate on the face or faces thereof for the number of shares
of Common Stock called for on the face or faces of the Warrant so surrendered by
the Transferor. No such transfers shall result in a public
distribution of the Warrant.
7. Replacement of
Warrant. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction of this Warrant by any Person
other than the Holder, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender of this Warrant for cancellation, the Company at its
sole expense, will execute and deliver, in lieu thereof, a new Warrant of like
tenor and dated the date hereof.
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8. Restrictions on
Transfer. The Holder of this Warrant, by acceptance thereof,
agrees that, this Warrant and the Warrant Shares issuable upon the exercise
hereof have not been registered under the Act, or any state securities
laws. This Warrant and the Warrant Shares issuable upon exercise
hereof, may not be sold, offered for sale, pledged, transferred, hypothecated or
otherwise disposed of in the absence of an effective registration statement
under or exemption from the Act and all applicable state securities
laws. Such Holder agrees that, upon the failure of the Holder to
comply with this Section 8, the
Company may issue instructions to its transfer agent to place, or may itself
place, a “stop order” on transfers with respect to the Warrant and Warrant
Shares. The certificates evidencing the Warrant and Warrant Shares
which will be delivered to such Holder by the Company shall bear substantially
the following legend:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE
SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER OR EXEMPTION FROM SUCH ACT AND ALL
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO HEMIWEDGE INDUSTRIES, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
Each
Holder of this Warrant and the Warrant Shares, at the time all or a portion of
such Warrant or Warrant Share is transferred or exercised, as applicable, agrees
to make such written representations to the Company as counsel for the Company
may reasonably request, in order that the Company may be reasonably satisfied
that such transfer of the Warrant, exercise of the Warrant and consequent
issuance of Warrant Shares, or transfer of the Warrant Shares, as applicable,
will not violate the registration and prospectus delivery requirements of the
Act, or other applicable state securities laws.
9. Warrant Agent. The
Company may, by written notice to the Holder of the Warrant, appoint an agent (a
“Warrant
Agent”) for the purpose of issuing Common Stock (or Other Securities) on
the exercise of this Warrant pursuant to Section 1, exchanging
this Warrant pursuant to Section 6, and
replacing this Warrant pursuant to Section 7, or any of
the foregoing, and thereafter any such issuance, exchange or replacement, as the
case may be, shall be made at such office by such Warrant Agent.
10. Transfer on the Company’s
Books. Until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the
contrary. The Company shall not close its books against the transfer
of this Warrant or any Warrant Shares in any manner which interferes with the
timely exercise of this Warrant in accordance with the express terms
hereof.
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11. Governmental Filings and
Approvals. The Company shall assist and cooperate with the
Holder in making any required governmental filings or obtaining any required
governmental approvals prior to or in connection with any exercise of this
Warrant (including, without limitation, making any filings required to be made
by the Company).
12. Notices of Corporation
Action. If, at any time prior to the Expiration Date of this
Warrant and prior to its exercise in full, any one or more of the following
events shall occur: (a) any taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of Common Stock
of the Company or any Other Securities or property, or to receive any other
right; (b) any capital reorganization of the Company, any reclassification or
recapitalization of the Common Stock of the Company, any consolidation or merger
involving the Company and any other Person or any transfer of all or
substantially all the assets of the Company to any other Person; (c) any
voluntary or involuntary dissolution, liquidation or winding-up of the Company;
or (d) any issuance of any additional shares of Common Stock (or Other
Securities) other than Excepted Issuances, then in any such event, the Company
will mail to each Holder a notice specifying (i) in respect of subsection (a)
above, the date or expected date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, (ii) in respect of subsection (b) or (c)
above, the date or expected date on which any such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, (iii) in respect of
subsection (b) or (c) above, the date, if any such date is to be fixed, as of
which the holders of record of shares of Common Stock (or Other Securities)
shall be entitled to exchange their shares of Common Stock (or Other Securities)
for the cash, capital stock or other property deliverable upon such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up and a description in reasonable
detail of the transaction and (iv) in respect of subsection (d) above, the
expected date of such issuance, together with a description of the Common Stock
(or Other Securities) to be issued and the consideration to be received by the
Company therefor. In respect of such notices described in clauses
(i), (ii) and (iii) above, such notice shall be mailed at least thirty (30) days
prior to the date therein specified; in respect of notices described in clause
(iv) above, such notice shall be mailed as soon as is reasonably practicable
under the attendant circumstances but in no event later than five (5) business
days prior to the date therein specified.
13. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery or facsimile, addressed as set forth below or to
such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company to: Hemiwedge Industries, Inc.,
0000 Xxxxx Xxxxxxx Xxxx, Xxxxxx, Xxxxx 00000, Attn: President, CEO, telecopier
number: (000) 000-0000, with a copy by telecopier only to: Indeglia &
Xxxxxx, telecopier number: (000) 000-0000, Attn: Xxxx X. Xxxxxxxx and (ii) if to
the Holder, to: 00000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxx, 00000, telecopier number:
(___) ___-____. The Holder and the Company agree to promptly advise
the other parties hereto of any change of address from that so set
forth.
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14. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This
Warrant shall be construed and enforced in accordance with and governed by the
laws of the State of Texas. Any dispute relating to this Warrant
shall be adjudicated in Xxxxxx County, Texas. The headings in this
Warrant are for purposes of reference only and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Chief
Financial Officer
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WITNESS:
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11
Exhibit
A
FORM OF
SUBSCRIPTION
(To be
signed only on exercise of Warrant
pursuant
to Section 1.2 or 1.3 of the Common Stock Purchase Warrant)
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase ________ shares of the Common
Stock covered by such Warrant (without giving effect to any adjustments
thereof).
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is $___________ in the
aggregate. Such payment takes the form of (check applicable box or
boxes):
|
[___]
|
$__________
in lawful money of the United States (including certified or official bank
check).
|
|
[___]
|
Cancellation
of __________ Warrant Shares.
|
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to _____________________________________________________ whose
address is
____________________________________________________________________________________________________
____________________________________________________________________________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities
Act”), or pursuant to an exemption from registration under the Securities
Act.
|
Dated:
|
|||
|
(Signature
must conform to name of holder
as
specified on the face of the Warrant)
|
|||
|
(Address)
|
Exhibit
B
FORM OF
CASHLESS EXERCISE SUBSCRIPTION
(To be
signed only on exercise of Warrant
pursuant
to Section 1.8 of the Common Stock Purchase Warrant)
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to exercise the attached Warrant with
respect to ________ shares of the Common Stock covered by such Warrant pursuant
to Section 1.8 of the Common Stock Purchase Warrant, and makes payment therefore
in full by surrender and delivery of this Warrant. The calculations
supporting this exercise are attached hereto.
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to _____________________________________________________ whose
address is
____________________________________________________________________________________________________
____________________________________________________________________________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities
Act”), or pursuant to an exemption from registration under the Securities
Act.
|
Dated:
|
|||
|
(Signature
must conform to name of holder
as
specified
on the face of the Warrant)
|
|||
|
(Address)
|
Exhibit
C
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferee” the right represented by
the within Warrant to purchase the number of shares of Common Stock of HEMIWEDGE
INDUSTRIES, INC. to which the within Warrant relates specified under the heading
“Number Transferred,” respectively, opposite the name(s) of such person(s) and
appoints each such person Attorney to transfer its respective right on the books
of HEMIWEDGE INDUSTRIES, INC. with full power of substitution in the
premises.
|
Transferee
|
Number Transferred
|
|
The
undersigned transferor represents and warrants to HEMIWEDGE INDUSTRIES, INC.
that the transfer(s) contemplated herein are in compliance with applicable
securities laws.
|
Dated:
|
|||
|
(Signature
must conform to name of holder
as
specified on the face of the
Warrant)
|
|
Signed
in the presence of:
|
||
|
(Name)
|
||
|
(Address)
|
ACCEPTED
AND AGREED:
(TRANSFEREE)
|
(Name)
|
||
|
(Address)
|
