FORM OF WARRANT AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
EXERCISED, SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
NANOPIERCE TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and
-------------------------------
valuable consideration, the receipt of which is hereby acknowledged by
NANOPIERCE TECHNOLOGIES, INC., a Nevada corporation (the "Company"), CHARLESTON
----------
CAPITAL CORPORATION or registered assigns (the "Holder") is hereby granted the
--------------------
right to purchase at any time until 5:00 P.M., New York City time, on January
20, 2009 (the "Expiration Date"), __________________ (_____) fully paid and
nonassessable shares of the Company's Common Stock, $.0001 par value per share
(the "Common Stock"), at an initial exercise price per share (the "Exercise
Price") of $0.10 per share, subject to further adjustment as set forth herein.
2. Exercise of Warrants. This Warrant is exercisable in whole or
---------------------
in part at any time and from time to time, prior to the earlier of the
Expiration Date and the date fixed for redemption under Section 8(a), below.
Such exercise shall be effectuated by submitting to the Company (either by
delivery to the Company or by facsimile transmission as provided in Section 8
hereof) a completed and duly executed Notice of Exercise (substantially in the
form attached to this Warrant) as provided in this paragraph. The date such
Notice of Exercise is faxed or delivered to the Company shall be the "Exercise
Date," provided that the Holder of this Warrant tenders this Warrant to the
Company within five business days thereafter.
(a) The Notice of Exercise shall be executed by the Holder of
this Warrant and shall indicate the number of shares then being purchased
pursuant to such exercise. Upon surrender of this Warrant, together with
appropriate payment of the Exercise Price for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased.
(b) The Holder must pay the Exercise Price per share of
Common Stock for the shares then being exercised in cash or by certified or
official bank check.
3. Reservation of Shares. The Company hereby agrees that at all
-----------------------
times during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company of
------------------------------
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof,
---------------------
be entitled to any rights of a stockholder in the Company, either at law or
equity. The rights of the Holder are limited to those expressed in this Warrant
and are not enforceable against the Company except to the extent set forth
herein.
6. Protection Against Dilution and Other Adjustments.
------------------------------------------------------
6.1 The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 6; provided, that there shall be no adjustment in the
number of Warrant Shares issuable upon exercise of this Warrant upon any
adjustment of the Exercise Price pursuant to this Section 6. Upon each such
adjustment of the Exercise Price pursuant to this Section 6, the Holder shall
thereafter prior to the Expiration Date be entitled to purchase, at the Exercise
Price resulting from such adjustment, the number of Warrant Shares obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares issuable upon exercise of this Warrant immediately
prior to such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
6.2 If the Company, at any time while this Warrant is outstanding,
(i) shall pay a stock dividend (except scheduled dividends paid on outstanding
preferred stock as of the date hereof which contain a stated dividend rate) or
otherwise make a distribution or distributions on shares of its Common Stock or
on any other class of capital stock and not the Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common Stock into a larger
number of shares, or (iii) combine outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding after such event. Any adjustment made pursuant to
this Section shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of
a subdivision or combination, and shall apply to successive subdivisions and
combinations.
6.3 In case of any reclassification of the Common Stock, any
consolidation or merger of the Company with or into another person, the sale or
transfer of all or substantially all of the assets of the Company or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification, consolidation, merger, sale,
transfer or share exchange, and the Holder shall be entitled upon such event to
receive such amount of securities or property equal to the amount of Warrant
Shares such Holder would have been entitled to had such Holder exercised this
Warrant immediately prior to such reclassification, consolidation, merger, sale,
transfer or share exchange. The terms of any such consolidation, merger, sale,
transfer or share exchange shall include such terms so as to continue to give to
the Holder the right to receive the securities or property set forth in this
Section 6.3 upon any exercise following any such reclassification,
consolidation, merger, sale, transfer or share exchange.
6.4 If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in Sections
6.2, 6.3 and 6.5), then in each such case the Exercise Price shall be determined
by multiplying the Exercise Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such distribution by
a fraction of which the denominator shall be the Exercise Price determined as of
the record date mentioned above, and of which the numerator shall be such
Exercise Price on such record date less the then fair market value at such
record date of the portion of such assets or evidence of indebtedness so
distributed applicable to one outstanding share of Common Stock as determined by
the Company's independent certified public accountants that regularly examines
the financial statements of the Company (an "Appraiser").
6.5 If, at any time while this Warrant is outstanding, the Company
shall issue or cause to be issued rights or warrants to acquire or otherwise
sell or distribute shares of Common Stock for a consideration per share less
than the Exercise Price then in effect, except for (i) the granting of options
or warrants to employees, officers, directors and the issuance of shares upon
exercise of options granted, under any stock option plan heretofore or
hereinafter duly adopted by the Company; (ii) shares issued upon exercise of any
currently outstanding warrants or options and upon conversion of any currently
outstanding convertible debenture or (iii) shares issued pursuant to the
Investment Agreement then, forthwith upon such issue or sale, the Exercise Price
shall be reduced to the price (calculated to the nearest cent) determined by
multiplying the Exercise Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the sum of (i) the number of shares of
Common Stock outstanding immediately prior to such issuance, and (ii) the number
of shares of Common
Stock which the aggregate consideration received (or to be received, assuming
exercise or conversion in full of such rights, warrants and convertible
securities) for the issuance of such additional shares of Common Stock would
purchase at the Exercise Price, and the denominator of which shall be the sum of
the number of shares of Common Stock outstanding immediately after the issuance
of such additional shares. Such adjustment shall be made successively whenever
such an issuance is made.
6.6 For the purposes of this Section 6, the following clauses
shall also be applicable:
(i) Record Date. In case the Company shall take a record
------------
of the holders of its Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in Common Stock or in
securities convertible or exchangeable into shares of Common Stock, or (B) to
subscribe for or purchase Common Stock or securities convertible or exchangeable
into shares of Common Stock, then such record date shall be deemed to be the
date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(ii) Treasury Shares. The number of shares of Common Stock
---------------
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(a) All calculations under this Section 6 shall be made to
the nearest cent or the nearest 1/100th of a share, as the case may be.
(b) Whenever the Exercise Price is adjusted pursuant to
Section 6.4 above, the Holder, after receipt of the determination by the
Appraiser, shall have the right to select an additional appraiser (which shall
be a nationally recognized accounting firm), in which case the adjustment shall
be equal to the average of the adjustments recommended by each of the Appraiser
and such appraiser. The Holder shall promptly mail or cause to be mailed to the
Company, a notice setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
adjustment shall become effective immediately after the record date mentioned
above.
(c) If:
(i) the Company shall declare a dividend (or any other distribution)
on its Common Stock; or
(ii) the Company shall declare a special nonrecurring cash dividend on
or a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to all holders of the
Common Stock rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights; or
(iv) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the Common Stock of
the Company, any consolidation or merger to which the Company is
a party, any sale or transfer of all or substantially all of the
assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or
property; or
(v) the Company shall authorize the voluntary
dissolution, liquidation or winding up of the affairs
of the Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, at least 30 calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
-------- -------
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
7. Exercise and Transfer to Comply with the Securities Act;
---------------------------------------------------------------
Registration Rights.
--------------------
7.1 Exercise and Transfer. This Warrant has not been
------------------------
registered under the Securities Act of 1933, as amended, (the "Act") and has
been issued to the Holder for investment and not with a view to the distribution
of either the Warrant or the Warrant Shares. This Warrant may not be exercised,
and neither this Warrant nor any of the Warrant Shares or any other security
issued or issuable upon exercise of this Warrant may be sold, transferred,
pledged or hypothecated in the absence of an effective registration statement
under the Act relating to such security or an opinion of counsel satisfactory to
the Company that registration is not required under the Act. Each certificate
for the Warrant, the Warrant Shares and any other security issued or issuable
upon exercise of this Warrant shall contain a legend on the face thereof, in
form and substance satisfactory to counsel for the Company, setting forth the
restrictions on transfer contained in this Section 7.
7.2 Registration Rights. Reference is made to Article V of
---------------------
the Securities Purchase Agreement between the Holder and the Company pursuant to
which this Warrant was issued. The Company's obligations under said Article V
and the other terms and conditions thereof are incorporated herein by reference.
7.3 The Holder is limited in the amount of this Warrant it may
exercise. In no event shall the Holder be entitled to exercise any amount of
this Warrant in excess of that amount upon exercise of which the sum of (1) the
number of shares of Common Stock beneficially owned (as such term is defined
under Section 13(d) and Rule 13d-3 of the Securities Exchange Act of 1934 (the
1934 Act")) by the Holder, and (2) the number of Warrant Shares issuable upon
the exercise of any Warrants then owned by Holder, would result in beneficial
ownership, at any one point in time, by the Holder of more than 9.99% of the
outstanding shares of Common Stock of the Company, as determined in accordance
with Rule13d-1(j). Furthermore, the Company shall not process any exercise that
would result in beneficial ownership by the Holder of more than 9.99% of the
outstanding shares of Common Stock of the Company. Nothing stated herein shall
restrict the Investor from beneficially owning in the aggregate more than 9.99%
of the outstanding shares of Common Stock of the Company, as long as the 9.99%
is not owned by such Investor at any one point in time.
8. Intentionally deleted.
-----------------------
9. Notices. Any notice or other communication required or
-------
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails, as follows:
(i) if to the Company, to:
Xxxx X. Xxxxxxxxx, President and CEO
NanoPierce Technologies, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(p) 000-000-0000
(f) 000-000-0000
(ii) if to the Holder, to the address set below the Holder's
acceptance on page 4, below.
Any party may be notice given in accordance with this Section 8 if any of the
parties designates another address or person for receipt of notices hereunder.
10. Supplements and Amendments; Whole Agreement. This Warrant may
-------------------------------------------
be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the parties
hereto with respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
11. Governing Law. This Warrant shall be deemed to be a contract
--------------
made under the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of New York, or the state courts of the State of New York sitting in the
City of New York, in connection with any dispute arising under this Warrant.
Each of the parties hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
12. Jury Trial Waiver. The Company and the Holder hereby waive a
-----------------
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other in respect of any matter arising out or in
connection with this Warrant.
12. Counterparts. This Warrant may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
13. Descriptive Headings. Descriptive headings of the several
---------------------
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the
___ day of January, 2004.
NANOPIERCE TECHNOLOGIES, INC.
By: /s/Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx President and CEO
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of,, to purchase shares of the Common Stock,
no par value, of NANOPIERCE TECHNOLOGIES, INC. and tenders herewith payment in
accordance with Section 1 of said Common Stock Purchase Warrant.
_ CASH:$ ______________________ = (Exercise Price x Exercise Shares)
Payment is being made by:
_ enclosed check
_ wire transfer
_ other
I understand that I may only exercise this Warrant if there is a
registration statement relating to the exercise of this Warrant that is
effective under federal and applicable state law, or alternatively if there is
an exemption from registration available under federal and applicable state
(which exemption must be established to the satisfaction of NanoPierce
Technologies, Inc.). In each case, I understand that NanoPierce Technologies,
Inc. may require that I provide it information regarding my financial status,
state of residence, and other information necessary to determine whether the
exercise is subject to an effective registration statement or to determine
whether an applicable exemption is available.
Please deliver the stock certificate to:
Dated:
[Name of Holder]
By:
FORM OF WARRANT AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
EXERCISED, SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
NANOPIERCE TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and
-------------------------------
valuable consideration, the receipt of which is hereby acknowledged by
NANOPIERCE TECHNOLOGIES, INC., a Nevada corporation (the "Company"), XXXXX XXXXX
-----------
or registered assigns (the "Holder") is hereby granted the right to purchase at
any time until 5:00 P.M., New York City time, on January 15, 2009 (the
"Expiration Date"), __________________ (_____) fully paid and nonassessable
shares of the Company's Common Stock, $0.0001 par value per share (the "Common
Stock"), at an initial exercise price per share (the "Exercise Price") of $0.10
per share, subject to further adjustment as set forth herein.
2. Exercise of Warrants. This Warrant is exercisable in whole or
---------------------
in part at any time and from time to time, prior to the earlier of the
Expiration Date and the date fixed for redemption under Section 8(a), below.
Such exercise shall be effectuated by submitting to the Company (either by
delivery to the Company or by facsimile transmission as provided in Section 8
hereof) a completed and duly executed Notice of Exercise (substantially in the
form attached to this Warrant) as provided in this paragraph. The date such
Notice of Exercise is faxed or delivered to the Company shall be the "Exercise
Date," provided that the Holder of this Warrant tenders this Warrant to the
Company within five business days thereafter.
(a) The Notice of Exercise shall be executed by the Holder of
this Warrant and shall indicate the number of shares then being purchased
pursuant to such exercise. Upon surrender of this Warrant, together with
appropriate payment of the Exercise Price for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased.
(b) The Holder must pay the Exercise Price per share of
Common Stock for the shares then being exercised in cash or by certified or
official bank check.
3. Reservation of Shares. The Company hereby agrees that at all
-----------------------
times during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company of
------------------------------
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof,
---------------------
be entitled to any rights of a stockholder in the Company, either at law or
equity. The rights of the Holder are limited to those expressed in this Warrant
and are not enforceable against the Company except to the extent set forth
herein.
6. Protection Against Dilution and Other Adjustments.
------------------------------------------------------
6.1 Adjustment Mechanism. If an adjustment of the Exercise
---------------------
Price is required pursuant to Section 6.2, the Holder shall be entitled to
purchase such number of additional shares of Common Stock as will cause (i) the
total number of shares of Common Stock that the Holder is entitled to purchase
pursuant to this Warrant, multiplied by (ii) the adjusted Exercise Price per
share, to equal (iii) the dollar amount of the total number of shares of Common
Stock that the Holder is entitled to purchase before adjustment multiplied by
the total Exercise Price before adjustment.
6.2 Capital Adjustments. In case of any stock split or
--------------------
reverse stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original Exercise Price had been fairly
allocated to the stock resulting from such capital adjustment. Where the terms
of the preceding sentence are not directly applicable, the board of directors of
the Company will apply this Section in a fair, equitable and reasonable manner
so as to give effect, as nearly as may be, to the purposes hereof. A rights
offering to stockholders shall be deemed a stock dividend to the extent of the
bargain purchase element of the rights.
7. Exercise and Transfer to Comply with the Securities Act;
---------------------------------------------------------------
Registration Rights.
--------------------
7.1 Exercise and Transfer. This Warrant has not been
------------------------
registered under the Securities Act of 1933, as amended, (the "Act") and has
been issued to the Holder for investment and not with a view to the distribution
of either the Warrant or the Warrant Shares. This Warrant may not be exercised,
and neither this Warrant nor
any of the Warrant Shares or any other security issued or issuable upon exercise
of this Warrant may be sold, transferred, pledged or hypothecated in the absence
of an effective registration statement under the Act relating to such security
or an opinion of counsel satisfactory to the Company that registration is not
required under the Act. Each certificate for the Warrant, the Warrant Shares and
any other security issued or issuable upon exercise of this Warrant shall
contain a legend on the face thereof, in form and substance satisfactory to
counsel for the Company, setting forth the restrictions on transfer contained in
this Section 7.
7.2 Registration Rights. Reference is made to Article V of
---------------------
the Securities Purchase Agreement between the Holder and the Company pursuant to
which this Warrant was issued. The Company's obligations under said Article V
and the other terms and conditions thereof are incorporated herein by reference.
7.3(c) The Holder is limited in the amount of this Warrant it
may exercise. In no event shall the Holder be entitled to exercise any amount
of this Warrant in excess of that amount upon exercise of which the sum of (1)
the number of shares of Common Stock beneficially owned (as such term is defined
under Section 13(d) and Rule 13d-3 of the Securities Exchange Act of 1934 (the
1934 Act")) by the Holder, and (2) the number of Warrant Shares issuable upon
the exercise of any Warrants then owned by Holder, would result in beneficial
ownership by the Holder of more than 4.99% of the outstanding shares of Common
Stock of the Company, as determined in accordance with Rule13d-1(j).
Furthermore, the Company shall not process any exercise that would result in
beneficial ownership by the Holder of more than 4.99% of the outstanding shares
of Common Stock of the Company.
8. Intentionally deleted.
-----------------------
9. Notices. Any notice or other communication required or
-------
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails, as follows:
(i) if to the Company, to:
Xxxx X. Xxxxxxxxx, President and CEO
NanoPierce Technologies, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(p) 000-000-0000
(f) 000-000-0000
(ii) if to the Holder, to the address set below the Holder's
acceptance on page 4, below.
Any party may be notice given in accordance with this Section 8 if any of the
parties designates another address or person for receipt of notices hereunder.
10. Supplements and Amendments; Whole Agreement. This Warrant may
-------------------------------------------
be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the parties
hereto with respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
11. Governing Law. This Warrant shall be deemed to be a contract
--------------
made under the laws of the State of Nevada for contracts to be wholly performed
in such state and without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the City of Denver,
Colorado, or the state courts of the State of Colorado sitting in the City of
Denver, Colorado, in connection with any dispute arising under this Warrant.
Each of the parties hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
11. Jury Trial Waiver. The Company and the Holder hereby waive a
-----------------
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other in respect of any matter arising out or in
connection with this Warrant.
12. Counterparts. This Warrant may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
13. Descriptive Headings. Descriptive headings of the several
---------------------
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the
___ day of January, 2004.
NANOPIERCE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxxx President and CEO
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of,, to purchase shares of the Common Stock,
no par value, of NANOPIERCE TECHNOLOGIES, INC. and tenders herewith payment in
accordance with Section 1 of said Common Stock Purchase Warrant.
_ CASH:$ _____________________ = (Exercise Price x Exercise Shares)
Payment is being made by:
_ enclosed check
_ wire transfer
_ other
I understand that I may only exercise this Warrant if there is a
registration statement relating to the exercise of this Warrant that is
effective under federal and applicable state law, or alternatively if there is
an exemption from registration available under federal and applicable state
(which exemption must be established to the satisfaction of NanoPierce
Technologies, Inc.). In each case, I understand that NanoPierce Technologies,
Inc. may require that I provide it information regarding my financial status,
state of residence, and other information necessary to determine whether the
exercise is subject to an effective registration statement or to determine
whether an applicable exemption is available.
Please deliver the stock certificate to:
Dated:
[Name of Holder]
By:
