EXHIBIT 10.31
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
THE SUBJECT OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE AND THE SAME HAVE BEEN (OR WILL BE, WITH
RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE HEREOF) ISSUED IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
(I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (II) AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH TRANSFER OR DISPOSITION DOES NOT
VIOLATE THE ACT, THE RULES AND REGULATIONS THEREUNDER, OR APPLICABLE STATE
SECURITIES LAWS.
No. BW-1 Number of Shares Purchasable
Issue Date: December 19, 2003 Upon Exercise of Warrant: 40,000
Void after 5:00 p.m. Washington, D.C., Time on June 18, 2005
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
COMMON STOCK WARRANT AGREEMENT
This is to certify that, subject to the provisions of this Common Stock
Purchase Warrant (the "Warrant") and for value received, Xxx Xxxxxxxx (the
"Holder"),is entitled to purchase Forty Thousand (40,000) shares of common
stock, $.001 par value per share (the "Common Stock"), subject to adjustment as
set forth herein, of Guardian Technologies International, Inc., a Delaware
corporation (the "Company"), at an exercise price of Two Dollars Fifty Cents
($2.50) per share, subject to adjustment as set forth herein (the "Exercise
Price"), at any time during the period beginning December 19, 2003 (the "Issue
Date"), and ending eighteen months after the Issue Date (the "Expiration Date"),
but not later than 5:00 p.m. Eastern Standard Time on the Expiration Date.
1. Exercise of Warrant. Subject to the provisions of Section 9 below, this
Warrant may be exercised in whole or in part at any time or from time to time on
or after the Issue Date and until the Expiration Date; provided, however, that
if either of such days is a day on which banking institutions are authorized by
law to close (a "Bank Holiday"), then on the next succeeding day which shall not
be a Bank Holiday.
(a) Method of Exercise. This Warrant may be exercised by presentation
and surrender hereof to the Company at its principal office or at the office of
its transfer agent, if any (the "Transfer Agent"). The presentation and
surrender of this Warrant for exercise must be accompanied by: (i) the form of
subscription which is attached hereto in Annex A (the "Form of Subscription")
duly executed with signature guaranteed; and (ii) payment of the aggregate
Exercise Price for the
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number of shares specified in such form. If this Warrant should be exercised in
part only, upon presentation and surrender of this Warrant to the Company or the
Transfer Agent for cancellation, the Company shall execute and deliver a new
warrant evidencing the rights of the Holder to purchase the balance of the
shares purchasable hereunder. Upon receipt of this Warrant by the Company at its
office or by the Transfer Agent at its office, in proper form for exercise, the
Holder shall be deemed to be the holder of record of the Common Stock issuable
upon such exercise; provided, however, that if at the date of surrender of such
Warrant and payment of the aggregate Exercise Price, the transfer books for the
Common Stock shall be closed, the certificates representing the Common Stock or
other securities subject to issuance upon such exercise shall be issuable as of
the date on which the Company's transfer books shall next be opened. Until such
date, the Company shall be under no duty to deliver any certificate representing
such Common Stock or other securities and the Holder shall not be deemed to have
become a holder of record or owner of such Common Stock or such other
securities.
(b) Forms of Payment Authorized: Payment of the Exercise Price may be
made in cash or by certified or bank cashier's check. With the expiration of the
144 restriction, the Holder may elect to convert their warrants to shares of
Common Stock through a cashless exercise.
2. Reservation of Shares. There shall at all times be reserved for
issuance upon exercise of this Warrant such number of shares of Common Stock as
shall be subject hereto.
3. Fractional Shares. Notwithstanding any other provision hereof, the
Company shall not be required to issue fractional shares of Common Stock upon
the exercise of this Warrant. If any fraction of a share would, except for the
provisions hereof, be issuable upon the exercise of this Warrant, then: (a) if
the fraction of a share otherwise issuable is equal to or less than one-half,
the Company shall round down and issue only the largest whole number of shares
of Common Stock to which the Holder is otherwise entitled, or (b) if the
fraction of a share otherwise issuable is greater than one-half, the Company
shall round up and issue one additional share of Common Stock in addition to the
largest whole number of shares of Common Stock to which the Holder is otherwise
entitled.
4. Exchange, Transfer or Assignment of Warrant. Subject to the provisions
of this Section 4 and of Section 9 below, this Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company or the Transfer Agent, for other warrants of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Subject to the provisions of this
Section 4 and of Section 9 below, upon surrender of this Warrant to the Company
or the Transfer Agent accompanied by: (a) the form of assignment which is
attached hereto as Annex B (the "Form of Assignment") duly executed; and (b)
funds sufficient to pay any transfer tax, the Company shall, without charge,
execute and deliver a new warrant in the name of the assignee named in the Form
of Assignment and this Warrant shall promptly be canceled. This Warrant may be
divided or combined with other warrants which carry the same rights upon
presentation hereof at the office of the
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Company or the Transfer Agent, accompanied by a written notice signed by the
Holder hereof specifying the names and denominations in which new warrants are
to be issued.
The term "Warrant" as defined above shall hereafter include any warrant
into which this Warrant may be divided, exchanged or combined, and any Warrant
as the same may be hereafter modified or amended from time to time.
5. Theft, Destruction, Loss or Mutilation of Warrant. Subject to the
provisions of Section 4, in the event of the theft, destruction, loss or
mutilation of this Warrant, upon receipt by the Company of evidence satisfactory
to it of such theft, destruction, loss or mutilation and, in the case of loss,
theft or destruction, of such indemnification as the Company may in its
discretion impose, and in the case of mutilation, upon surrender and
cancellation of this Warrant, the Company shall execute and deliver a new
warrant of like tenor and date.
6. Rights of the Holder. Prior to the exercise of any Warrant represented
hereby, the Holder shall not be entitled by virtue hereof 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 enforceable against the
Company only to the extent set forth herein.
7. Anti-Dilution Provisions. The Exercise Price and the number and kind of
securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time as hereinafter provided:
(a) In case the Company shall issue shares of Common Stock as a
dividend upon shares of Common Stock or in payment of a dividend thereon, or
shall subdivide the number of outstanding shares of its Common Stock into a
greater number of shares or shall contract the number of outstanding shares of
its Common Stock into a lesser number of shares, the Exercise Price then in
effect shall be adjusted, effective at the close of business on the record date
for the determination of stockholders entitled to receive the same, to the price
(computed to the nearest cent) determined by dividing (i) the product obtained
by multiplying the Exercise Price in effect immediately prior to the close of
business on such record date by the number of shares of Common Stock outstanding
prior to such dividend, subdivision or contraction, by (ii) the number of shares
of Common Stock outstanding immediately after such dividend, subdivision, or
contraction.
(b) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with or into
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the holder of this Warrant shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in this Warrant and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented by this Warrant, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such
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Common Stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented by this Warrant had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of the Holder to the end that the provisions of this Warrant
(including, without limitation, provisions for adjustment of the Exercise Price
and of the number of shares of Common Stock or other securities issuable upon
the exercise of this Warrant) shall thereafter be applicable as nearly as may be
practicable in relation to any shares of stock, securities, or assets thereafter
deliverable upon exercise of this Warrant. The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously with the
consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume, by written instrument, the obligation to deliver to the
Holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase; and such successor
corporation agrees to be bound by the provisions of Section 8 hereof with
respect to any securities issued pursuant to such consolidation, merger or
purchase of assets.
(c) Upon each adjustment of the Exercise Price pursuant hereto, the
number of shares of Common Stock specified in this Warrant shall thereupon
evidence the right to purchase that number of shares of Common Stock (calculated
to the nearest hundredth of a share of Common Stock) obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Common Stock purchasable immediately prior to such adjustment upon
exercise of this Warrant and dividing the product so obtained by the Exercise
Price in effect after such adjustment.
(d) Irrespective of any adjustments of the number or kind of securities
issuable upon exercise of this Warrant or the Exercise Price, any warrants
theretofore or thereafter issued may continue to express the same number of
shares of Common Stock and Exercise Price as are stated in similar warrants
previously issued.
(e) The Company may, at its sole option, retain the independent public
accounting firm regularly retained by the Company, or another firm of
independent public accountants of recognized standing selected by the Company's
board of directors (the "Board of Directors"), to make any computation required
under this section and a certificate signed by such firm shall be conclusive
evidence of any computation made under this section.
(f) Whenever there is an adjustment in the Exercise Price and/or in the
number or kind of securities issuable upon exercise of this Warrant, as provided
herein, the Company shall: (i) promptly file in the custody of its Secretary or
Assistant Secretary a certificate signed by the Chairman of the Board of
Directors or the President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company, showing in
detail the facts requiring such adjustment and the number and kind of securities
issuable upon exercise of this Warrant after such adjustment; and (ii) cause a
notice to be sent to the Holder stating that such
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adjustment has been effected and stating the Exercise Price then in effect and
the number and kind of securities issuable upon exercise of this Warrant.
(g) The Exercise Price and the number of shares issuable upon exercise
of this Warrant shall only be adjusted in the manner and upon the conditions
heretofore specifically referred to in Subsections 7(a) through 7(f) above.
(h) Notwithstanding the foregoing, no adjustment shall be made pursuant
to this Section 7 from: (i) options and warrants, and Common Stock issued upon
exercise of options and warrants, granted to employees, officers, directors,
consultants and other services providers, or pursuant to the Company's stock
incentive or stock option plans and employee benefit or compensation plans
heretofore or hereafter adopted, (ii) the conversion of convertible securities
or derivative securities outstanding on the Issue Date and approved by the Board
of Directors of the Corporation, (iii) Common Stock, warrants and options
granted to vendors, banks, lenders, and equipment lessors, and other third
parties the primary purpose of which is other than capital raising, (iv) in an
offering registered under the Securities Act, (v) upon conversion of any shares
of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock or
Series C Convertible Preferred Stock of the Company, (vi) acquisitions by the
Company or its subsidiaries of assets or equity securities of third parties, or
(vii) mergers, consolidations, joint ventures, or other business combinations by
the Company or any subsidiary with a third party.
8. Registration Rights. The Company hereby covenants and agrees as
follows:
(a) Definitions. As used in this Section 8, the following terms shall
have the meanings set forth below:
(i) The terms "register," "registered" and "registration" shall
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended ("Securities Act"), and the declaration or ordering of the effectiveness
of such registration statement or document.
(ii) The term "Registrable Securities" shall mean: (A) the shares of
Common Stock issued or issuable upon exercise of this Warrant; and (B) any other
securities of the Company issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, in exchange for or in replacement of the shares of
Common Stock referenced in (A) immediately above, excluding in all cases,
however, any Registrable Securities sold to the public pursuant to a
registration under the Securities Act or an applicable exemption therefrom.
(b) Piggy-back Registration Rights. In the event that (but without any
obligation to do so) the Company proposes to register any of its securities
under the Securities Act in connection with the public offering of such
securities solely for cash (other than a registration on Form X-0, Xxxx X-0 or
any form which does not include substantially the same information as would
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be required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall promptly give the Holder of the
Registrable Securities written notice of such registration (the "Piggy-Back
Notice"). Upon the written request of the Holder given within twenty (20) days
after receipt of such Piggy-Back Notice from the Company, the Company shall,
subject to the provisions of Subsections 8(h), 8(i) and 8(j) below, cause to be
included in the registration statement filed by the Company under the Securities
Act all of the Registrable Securities that the Holder has requested to be
registered; provided, however, that the Company shall have no such obligation if
such registration statement relates to an underwritten offering by the Company
and the managing underwriter of the subject offering has expressed in writing
its objection to the same to the Company. To the extent that the Holder is
offered the opportunity hereunder to include all of its Registrable Securities
in a registration statement, such Holder will be deemed to have exercised its
sole piggy-back registration right provided by this Subsection 8(b), unless the
Holder has been denied the right to participate in such registration by the
managing underwriter of the registration, pursuant to this section.
(c) Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant hereto that the Holder,
having chosen to have its Registrable Securities included for registration,
shall furnish to the Company such information regarding the Holder, its
Registrable Securities and the intended method of disposition of such securities
as shall be required to effect the registration thereof. In that connection, the
Holder shall be required to represent to the Company that all such information
which is given is complete and accurate in all material respects. The Holder
shall deliver to the Company a statement in writing from the beneficial owners
of such securities that such beneficial owners bona fide intend to sell,
transfer or otherwise dispose of such securities.
(d) Definition of Expenses.
(i) "Registration Expenses" shall mean all expenses incurred by the
Company, including opinion letters for the benefit of the Holders, in complying
with Subsections 8(b) hereof, including without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, "Blue Sky" fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
(ii) "Selling Expenses" shall mean all underwriting discounts,
underwriters' expense allowance, and selling commissions applicable to the sale
of Registrable Securities by the Holders and all fees and disbursements of any
special counsel (other than the Company's regular counsel).
(e) Expense of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance herewith, shall be
borne by the Company, and all Selling Expenses shall be borne by the Holder of
the Registrable Securities, except in the case of
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legal fees incurred by the Holder, which shall be paid by the Holder regardless
of whether the securities registered hereunder have in fact been sold.
(f) Underwriting Requirements. The Holder proposing to distribute its
Registrable Securities through an underwriting in which the Company has proposed
or is proposing to participate, shall (together with the Company and any other
holders distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
this section, at the request of the managing underwriter, the Holder shall delay
the sale of the Registrable Securities which such Holder has requested to be
registered under this section for the thirty (30) day period commencing with the
effective date of the registration statement. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall not be withdrawn from such
registration except at the election of the Holder.
(g) Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this section.
(h) Indemnification. In the event that any Registrable Securities are
included in a registration statement pursuant hereto:
(i) To the extent permitted by law, the Company will indemnify and
hold harmless the Holder, the officers, directors and partners of the Holder,
any underwriter (as defined in the Securities Act) for the Holder and each
person or entity, if any, that controls the Holder or underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities (joint or several) to which he may become subject under
the Securities Act, the Exchange Act or other Federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (A) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; (B) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (C) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any applicable
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any applicable state securities law; and the Company
will reimburse each such Holder, officer, director or partner, underwriter or
any controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in
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any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by the Holder, underwriter or
controlling person; and further provided, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any untrue
statement, alleged untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the definitive prospectus,
such indemnity agreement shall not inure to the benefit of any underwriter or
broker (or the benefit of any person or entity that controls such underwriter or
broker), if a copy of the definitive prospectus was not sent or given to such
person with or prior to the confirmation of the sale of such securities to such
person or entity.
(ii) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, its directors, its officers, any person
who controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter (within the meaning of the Securities Act) for the
Company, any person who (or entity that) controls such underwriter against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, or underwriter or controlling person (or entity)
may become subject, under the Securities Act, the Exchange Act or other Federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by the Holder
expressly for use in connection with such registration; and the Holder will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, underwriter, or controlling person (or entity) thereof,
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld.
(iii) Promptly after receipt by an indemnified party under this
Subsection 8(h) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Subsection 8(h), notify
the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with reasonable fees and expenses
thereof to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to notify an indemnifying party within a reasonable time
of the commencement of any such action, to the extent prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Subsection 8(h), but the omission so to
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notify the indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Subsection 8(h).
(i) Reports Under Exchange Act. With a view toward making
available to the Holder the benefits of Rule 144 under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees, upon such registration, to:
(i) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all times;
and
(ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
(j) Termination of the Company's Obligations.
Notwithstanding any provision hereof to the contrary, the Company shall
not be required to effect any registration under the Securities Act or under any
state securities laws on behalf of any Holder or Holders if, in the opinion of
counsel for the Company, the offering or transfer by such Holder or Holders in
the manner proposed (including without limitation, the number of shares proposed
to be offered or transferred and the method of offering or transfer) is exempt
from the registration requirements of the Securities Act and the securities or
"Blue Sky" laws of applicable states.
(k) Holder's Acceptance of Obligations. Acceptance of this Warrant by
its Holder(s) shall be deemed to constitute the unqualified acceptance by the
Holder of all of the terms and conditions set forth herein.
(l) Lock-Up. If requested by the managing underwriter of an
underwritten offering by the Company for cash, the Holder agrees that the Holder
will not offer, sell, contract to sell, transfer, assign, hypothecate, gift,
grant any option or warrant to purchase or right to acquire this Warrant or any
of the shares of Common Stock or other securities issuable upon exercise of this
Warrant, during the twelve (12) months following the closing of such
underwritten public offering, without the prior written consent of such
underwriter, and the Holder will permit this Warrant and all certificates
evidencing the shares of Common Stock issued upon exercise of this Warrant to be
stamped with an appropriate restrictive legend and will cause the warrant and
transfer agent for the Company to note such restrictions on the transfer books
and records of the Company; and the Holder shall enter into an agreement with
respect to the foregoing with the Company and any such underwriter at or before
the closing of such initial public offering.
9. Transfer to Comply with the Securities Act and Other Applicable
Securities Laws. Neither this Warrant nor the shares of Common Stock (or other
securities) issuable upon exercise hereof have been registered under the
Securities Act or under state securities laws. Except as
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provided in Section 4 above: (a) this Warrant may not be transferred, assigned,
pledged, sold, or otherwise disposed of; and (b) the shares of Common Stock (or
other securities) issuable upon exercise of this Warrant may not be transferred,
assigned, pledged, sold or otherwise disposed of in the absence of registration
under or exemption from the applicable provisions of the Securities Act unless
the Holder provides the Company with an opinion of counsel, at the Company's
expense, in form and substance satisfactory to the Company (together with such
other representations and warranties as the Company may request) that the shares
of Common Stock issued or issuable, as applicable, upon exercise of this Warrant
may be legally transferred without violating the Securities Act, and any other
applicable securities law and then only against receipt of an agreement of the
transferee (in form and substance satisfactory to the Company) to comply with
the provisions of this section with respect to any resale or other disposition
of such securities.
10. Notices. Any notices, consents, waivers, or other communications
required or permitted to be given hereunder must be in writing and will be
deemed to have been delivered personally: (a) upon receipt, when delivered
personally; (b) upon receipt, when sent by facsimile, provided a copy is mailed
by U.S. certified mail, return receipt requested; (c) three (3) days after being
sent by U.S. certified mail, return receipt requested; or (d) one (1) day after
deposit with a nationally recognized overnight delivery service, in each such
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be: if to the Holder of this
Warrant, at the address and facsimile number of the Holder as shown on the
registry books maintained by the Company, its transfer agent or the Warrant
Agent; and if to the Company, to Guardian Technologies International, Inc.,
00000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, attention: President, facsimile
number (000) 000-0000.
11. Survival. All agreements, covenants, representations and warranties
set forth herein shall survive the execution and delivery of this Warrant and
any investigation at any time made by or on behalf of any parties hereto and the
exercise and purchase of this Warrant.
12. Amendments. The Company may, in its sole discretion, by supplemental
agreement or pursuant to an amended warrant certificate issued in exchange for
this Warrant make any changes or corrections to the terms and conditions hereof
which it deems appropriate in order to (a) reduce the Exercise Price; (b) extend
the Expiration Date of this Warrant; (c) cure any ambiguity or to correct any
defective or inconsistent provision or manifest mistake or error herein
contained; (d) modify such other terms and conditions hereof which modification,
in the judgment of the Board of Directors, provides, when considered under the
totality of the circumstances a net benefit to or which, in the exercise of such
judgment, the Board of Directors reasonably determines would not be contrary to
the interests of the Holder of this Warrant; provided, however, that no adverse
change in the number or nature of the securities purchasable upon the exercise
of this Warrant, or the Exercise Price therefor, or the acceleration of the
Warrant Expiration Date, shall be made without the consent in writing of the
Holder of this Warrant. The registration rights contained in Section 8 hereof
shall survive any such modification of this Warrant.
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13. Agreement of Warrant Holders. The Holder, by his acceptance thereof,
consents and agrees with the Company and any Transfer or Warrant Agent that:
(a) The Warrants are transferable only on the registry books of the
Company, any Transfer Agent or Warrant Agent by the Holder thereof in person or
by his attorney duly authorized in writing and only if the warrant certificates
representing such Warrants are surrendered at the office of the Company or the
Transfer or Warrant Agent, if any, duly endorsed or accompanied by a proper
instrument of transfer satisfactory to the Company and the Transfer or Warrant
Agent, if any, in their sole discretion, together with payment of any applicable
transfer taxes;
(b) The Company and any Transfer or Warrant Agent may deem and treat
the person in whose name the warrant certificate is registered as the Holder and
as the absolute, true and lawful owner of the Warrants represented thereby for
all purposes, and none of the Company, the Transfer Agent or the Warrant Agent
shall be affected by any notice or knowledge to the contrary, except as
otherwise expressly provided in Section 5 hereof;
(c) Each Warrant shall be subject in all respects to the terms and
conditions set forth in any amended warrant certificate upon the issuance
thereof and upon the mailing by the Company of notice of the amendment of the
terms and conditions of this Warrant;
(d) Holder shall execute all such further instruments and documents and
take such further action as the Company may reasonably require in order to
effectuate the terms and purposes of this Warrant.
14. Severability. The provisions of this Warrant shall be considered
severable in the event that any of such provisions are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable. Such
invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
15. Governing Law. The validity and construction of this Warrant and all
matters pertaining hereto are to be determined in accordance with the laws of
the State of Delaware without reference to the conflict of law principles of
that state.
16. Rights as Stockholder. This Warrant, as such, shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Company.
17. Entire Agreement. This Warrant is intended to and does contain and
embody the entire understanding and agreement of the Company and the Holder with
respect to the subject matter hereof and there exists no oral agreement or
understanding, express or implied, whereby the
11
absolute, final and unconditional character and nature of this Warrant shall be
in any way invalidated, unempowered or affected.
18. Headings. The headings in this Warrant are for convenience of
reference only and are not part of this Warrant.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name and on its behalf and its corporate seal to be affixed hereon by its
duly authorized officers as of the date of issuance first above written.
GUARDIAN TECHNOLOGIES
INTERNATIONAL, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman & CEO
Attest:
By: /S/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Secretary
Annex A to Common Stock Purchase Warrant
FORM OF SUBSCRIPTION
(Complete and sign only upon exercise of the Warrant in whole or in part.)
To: Guardian Technologies International, Inc.
The undersigned, the Holder of the attached Common Stock Warrant (No.
BW-1) to which this Form of Subscription applies, hereby irrevocably elects to
exercise the purchase rights represented by such warrant for and to purchase
thereunder shares of common stock, $.001 par value per share (the "Common
Stock"), from Guardian Technologies International, Inc. (or such other
securities issuable pursuant to the terms of the Common Stock Purchase Warrant)
and herewith makes payment of $_________ therefor in cash or by certified or
official bank check. The undersigned hereby requests that the certificate(s)
representing such securities be issued in the name(s) and delivered to the
address(es) as follows:
Name:
------------------------------------------------------
Address:
------------------------------------------------------
Social Security Number:
------------------------------------------------------
Deliver to:
------------------------------------------------------
Address:
------------------------------------------------------
If the foregoing subscription evidences an exercise of the Common Stock
Purchase Warrant to purchase fewer than all of the shares of Common Stock (or
other securities issuable pursuant to the terms of the Common Stock Purchase
Warrant) to which the undersigned is entitled under such warrant, please issue a
new warrant, of like tenor, relating to the remaining portion of the securities
issuable upon exercise of such warrant (or other securities issuable pursuant to
the terms of such warrant) in the name(s), and deliver the same to the
address(es), as follows:
Name:
------------------------------------------------------
Address:
------------------------------------------------------
Dated:
------------------------------------------------------
--------------------------------- --------------------------------------------
(Name of Holder) (Social Security or Taxpayer Identification
---------------------------------
Number of Holder, if applicable)
---------------------------------------------
(Signature of Holder or Authorized Signatory)
Signature Guaranteed:
---------------------------------------------
Annex B to Placement Agent's Warrant
FORM OF ASSIGNMENT
(To be executed upon transfer of Common Stock Purchase Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
to the right represented by the Common Stock Purchase Warrant (No. BW-1) to
which this Form of Assignment applies together with all rights, title and
interest therein, and does hereby irrevocably constitute and appoint attorney to
transfer such Common Stock Purchase Warrant on the warrant register of Guardian
Technologies International, Inc., the issuer of the Common Stock Purchase
Warrant, with full power of substitution.
DATED: .
--------------------------------------
Signature:
Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
Signature Guaranteed:
