WARRANT TO PURCHASE COMMON STOCK OF XENONICS HOLDINGS, INC.
Exhibit 4.6
NEITHER THIS WARRANT NOR ANY OF THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS, AND NONE OF SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THIS WARRANT OR
SUCH SHARES, AS APPLICABLE, UNDER SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. THIS LEGEND SHALL BE ENDORSED UPON ANY WARRANT
ISSUED IN EXCHANGE FOR THIS WARRANT.
Warrant to Purchase Shares of Common Stock
| Warrant Shares 150,000 | Issue Date: July 15, 2009 |
This certifies that, for value received, Xxxxx Xxxxxx (the “Holder”), or his
registered assigns, is entitled, subject to the terms set forth below, to purchase from Xenonics
Holdings, Inc., a Nevada corporation (the “Company”), at any time, and from time to time,
during the term set forth in Section 1 below, fully paid, validly issued and nonassessable shares
of the Company’s $0.001 par value common stock (the “Common Stock”), upon surrender hereof,
at the principal office of the Company, with the subscription form attached hereto duly executed,
and simultaneous payment therefor in lawful money of the United States, at the Exercise Price as
set forth in Section 2 below.
1. Term of Warrant. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable, in whole or in part, at any time or from time to time, during the
term commencing on the date hereof and ending July 15, 2014.
2. Number of Shares of Common Stock: Exercise Price.
(a) During the term of this Warrant, this Warrant may be exercised for the purchase of shares
of Common Stock.
(b) The number of shares of Common Stock that can be purchased upon the exercise of this
Warrant shall be One Hundred Fifty Thousand (150,000).
(c) The Exercise Price at which this Warrant may be exercised shall be $.75 per share.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by the Holder in whole or
in part, at any time, or from time to time, during the term hereof as described in Section 1 above,
by the surrender of this Warrant and the Notice of Exercise annexed hereto duly completed and
executed on behalf of the Holder, at the office of the Company (or such other office or agency of
the Company as it may designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Company), upon payment in cash or by check acceptable to the Company
of the purchase price of the shares of Common Stock to be purchased.
(b) This Warrant shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the person entitled to
receive the shares of Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days thereafter, the Company at
its expense shall issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of shares of Common Stock issuable upon such exercise.
In the event that this Warrant is exercised in part, the Company at its expense will execute and
deliver a new Warrant of like tenor exercisable for the number of shares of Common Stock for which
this Warrant may then be exercised.
4. No Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional
share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal
to the Exercise Price then in effect multiplied by such fraction.
5. 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, upon delivery of an indemnity agreement reasonably satisfactory in form
and substance to the Company or, in the case of mutilation, upon surrender or cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor representing the right to subscribe for and purchase the shares of Common
Stock which may be subscribed for and purchased hereunder. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation of the Company, whether or not this
Warrant so lost, stolen, destroyed or mutilated shall be at any time enforceable by anyone.
6. Rights of Stockholders. The Holder shall not be entitled to vote or receive
dividends or be deemed the holder of Common Stock or any other securities of the Company that may
at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein
be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par value, or change of
stock to no par value, consolidation, merger, conveyance, or otherwise) or to
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receive notice of meetings, or to receive dividends or subscription rights or otherwise until
this Warrant shall have been exercised as provided herein.
7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the “Warrant
Register”) containing the names and addresses of the Holder or Holders. Any Holder of this
Warrant or any portion hereof may change its address as shown on the Warrant Register by written
notice to the Company requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mall to such Holder as shown on
the Warrant Register and at the address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register of the Company, the Company may treat the Holder as shown on
the Warrant Register as the absolute owner of this Warrant for the purpose of any exercise hereof
or any distribution to the Holder and for all other purposes, notwithstanding any notice to the
contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder, appoint an agent
for the purpose of maintaining the Warrant Register referred to in Section 7(a) above, issuing the
Common Stock or other securities then issuable upon the exercise of this Warrant, exchanging this
Warrant, replacing this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be made at the office
of such agent.
(c) Transferability and Nonnegotiability of Warrant. This Warrant may not be
transferred or assigned in whole or in part without compliance with all applicable federal and
state securities laws by the transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the Company, if such are
requested by the Company). Subject to the provisions of this Warrant with respect to compliance
with the Securities Act of 1933, as amended (the “Act”), title to this Warrant may be
transferred by endorsement (by the Holder executing the Assignment Form annexed hereto) and
delivery in the same manner as a negotiable instrument transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this Warrant for exchange,
properly endorsed on the Assignment Form and subject to the provisions of this Warrant with respect
to compliance with the Act, the Company at its expense shall issue to or on the order of the Holder
a new warrant or warrants to purchase Common Stock, in substantially the form of this Warrant, in
the name of the Holder or as the Holder (on payment by the Holder of any applicable transfer taxes)
may direct, for the number of shares issuable upon exercise hereof. In the event of a partial
transfer by a Holder, the Company shall issue to the holders one or more appropriate new warrants.
The acceptance of the new warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a warrant.
(e) Compliance with Securities Laws. All shares of Common Stock issued upon exercise
hereof shall be stamped or imprinted with a legend in substantially the following form (in addition
to any legend required by state securities laws):
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS THE SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
Upon the registration, under the Act, of the securities issued upon exercise of the Warrant such
legend shall be removed from the certificate evidencing such securities.
8. Registration.
(a) Piggybank Registration. The Company agrees that, other than a registration
statement filed on Form S-8 or to register shares for selling shareholders to be prepared and filed
within one of year of the date hereof, at any time on or before the Expiration Date the Company
registers any of its securities under the Act, whether for its own account or on behalf of selling
stockholders, the Company will provide the Holder with at least forty-five (45) days prior written
notice of such intention and, upon request from the Holder, will cause the underlying shares
issuable under this Warrant designated by the Holder to be registered under the Act (such event, a
“Piggyback Registration”).
(b) Piggybank Registration Procedures. A registration statement referred to in
Section 8(a) shall be prepared and processed in accordance with the following terms and conditions:
(i) The Holder agrees to cooperate in furnishing promptly to the Company in writing, any
information requested by the Company in connection with the preparation, filing and processing of
such registration statement and shall provide the Company with an agreement of indemnification
customary in offerings of this nature.
(ii) The Company shall include in the registration statement the shares of Common Stock
proposed to be included in the Piggyback Registration subject to the limitations set forth in
Section 8(c).
(iii) The Company shall prepare and file with the Securities and Exchange Commission (the
“SEC”) such amendments and supplements to such registration statement and the prospectuses used in
connections therewith as may be required to comply with the provisions of the Act.
(iv) The Company shall furnish to the Holder such number of copies of each prospectus,
including preliminary prospectuses, in conformity with the requirements of the Act and such other
documents, as the Holder may reasonably request in order to facilitate the public sale or other
disposition of the shares owned by it.
(v) The Company shall provide a transfer agent and registrar for all such Common Stock
registered pursuant to this Section 8 not later than the Effective Date of such registration
statement.
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(vi) The Company shall, in connection with an underwritten offering, enter into an
underwriting agreement on terms customarily contained in underwriting agreements with respect to
secondary distributions or combined primary and secondary distributions, as appropriate.
(vii) The Company shall make available for inspection upon reasonable terms by the Holder, any
underwriter participating in any disposition pursuant to such registration statement, and any
attorney, accountant, or other agent retained by such Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with the preparation of such
registration statement, provided that as a condition precedent to such inspection, the Company may
require such inspecting party to execute and deliver a confidentiality agreement in a form to be
provided by the Company.
(viii) The Holder shall not (until further notice) effect sales of the shares covered by the
registration statement after receipt of telegraphic or written notice from the Company to suspend
sales to permit the Company to correct or update registration statement or prospectus.
(c) Limitations. Notwithstanding the foregoing, if a Piggyback Registration is an
underwritten offering and the managing underwriter advises the Company in writing that in its
opinion the total amount of securities requested to be included in such registration exceeds the
amount of securities which can be sold in such offering, the Company will include in such
registration: (i) first, all securities the Company proposes to sell, and (ii) second, up to such
amount of securities requested to be included in such registration by the Holders of the Company,
which in the opinion of such managing underwriter can be sold.
(d) No Net Cash Settlement. Notwithstanding anything to the contrary herein, under no
circumstances will the Company be required to net cash settle the exercise of this Warrant.
9. Notices.
(a) Whenever the Exercise Price or number of shares purchasable hereunder shall be adjusted
pursuant to Section 11 hereof, the Company shall issue a certificate signed by a duly authorized
officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise Price and number
of shares purchasable hereunder after giving effect to such adjustment, and shall cause a copy of
such certificate to be mailed (by first-class mail, postage prepaid) to the Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its Common Stock (or other stock or
securities at the time receivable upon the exercise of this Warrant) for the purpose of entitling
them to receive any dividend or other distribution, or any right to
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subscribe for or purchase any shares of stock of any class or any other securities, or to
receive any other right, or
(ii) of any capital reorganization of the Company, any reclassification of the capital stock
of the Company, any consolidation or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of the Company, then, and in
each such case, the Company will mail or cause to be mailed to the Holder or Holders a notice
specifying, as the case may be, (A) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of such dividend,
distribution or right, or (B) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common Stock (or such stock or
securities at the time receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15 days prior to the
date therein specified.
(c) All such notices, advices and communications shall be deemed to have been received (i) in
the case of personal delivery, on the date of such delivery and (ii) in the case of mailing, on the
first business day following the date of such mailing.
10. Waivers and Amendments.
(a) Any term of this Warrant may be amended or waived only with the written consent of the
Company and the Holder.
(b) No waivers of, or exceptions to, any term, condition or provision of this Warrant, in any
one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of
any such term, condition or provision.
11. Adjustments. The Exercise Price and the number of shares purchasable hereunder
are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while this Warrant, or any portion
hereof, is outstanding and unexpired there shall be a: (i) reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise provided for herein),
(ii) merger or consolidation of the Company with or into another corporation in which the Company
is not the surviving entity, or a reverse triangular merger in which the Company is the surviving
entity but the shares of the Company’s capital stock outstanding immediately prior to the merger
are converted by virtue of the merger into other property, whether in the form of securities, cash
or otherwise, or (iii) sale or transfer of the Company’s properties and assets as, or substantially
as, an entirety to any other person, then, as a part of such reorganization, merger, consolidation,
sale or transfer, lawful provision shall be made so that the Holder of this Warrant shall
thereafter be entitled to receive upon exercise of this Warrant, during the period specified
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herein and upon payment of the Exercise Price then in effect, the number of shares of Common
Stock or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such reorganization,
consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer.
(b) Reclassification, etc. If the Company, at any time while this Warrant, or any
portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise,
shall change any of the securities as to which purchase rights under this Warrant exist into the
same or a different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or other change and
the Exercise Price therefor shall be appropriately adjusted.
(c) Split, Subdivision or Combination of Shares. If the Company at any time while
this Warrant, or any portion hereof, remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this Warrant exist, into a different
number of securities of the same class, then (i) the Exercise Price for such securities shall be
proportionately decreased in the case of a split or subdivision or proportionately increased in the
case of a combination, and (ii) the number of shares issuable hereunder shall be proportionately
increased or decreased, as the case may be, in both cases according to the ratio which the total
number of shares of such security to be outstanding immediately after such event bears to the total
number of shares of such security outstanding immediately prior to such event.
(d) Certificate as to Adjustments. Upon the occurrence of each adjustment or
readjustment pursuant to this Section 11, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to each Holder of this
Warrant a certificate setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based.
12. Descriptive Headings and Governing Law. The descriptive headings of the several
sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a
part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of California without regard to
conflicts of law provisions.
13. Speculative Value of Warrant. No Net Cash Settlement.. It is understood and
agreed by the Company and Xxxxxx that the Warrant as of the date of issuance has a speculative
value and no definitive value can be expressed. Xxxxxx agrees that this Warrant does not provide
for a net cash settlement under any circumstances.
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IN WITNESS WHEREOF, XENONICS HOLDINGS, INC. has caused this Warrant to he executed by its
officer thereunto duly authorized.
| Dated: July 15, 2009 | XENONICS HOLDINGS, INC. |
|||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Chairman of the Board | |||
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NOTICE OF EXERCISE
(1) The undersigned hereby elects to:
___(a) purchase [ ] shares of Common Stock of XENONICS HOLDINGS, INC., pursuant to
the provisions of the attached Warrant, and tenders herewith payment of the purchase price for such
shares in full or
___(b) exercise the attached Warrant for [ ] shares of Common Stock of XENONICS
HOLDINGS, INC. and hereby makes payment pursuant to the Cashless Exercise provision of the
attached Warrant, and directs that the payment of the Exercise Price be made by cancellation as of
the date of exercise of a portion of the attached Warrant in accordance with the terms and
provisions of Section 3(c) of the attached Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and acknowledges that the
shares of Common Stock to be issued are being acquired solely for the account of the undersigned
and not as a nominee for any other party, and for investment, and that the undersigned will not
offer, sell or otherwise dispose of any such shares of Common Stock except under circumstances that
will not result in a violation of the Securities Act of 1933, as amended, or any applicable state
securities laws.
(3) Please issue a certificate or certificates representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:
| (Name) |
(4) Please issue a new Warrant for the unexercised portion of the attached Warrant in the name
of the undersigned or in such other name as is specified below:
| Name: | ||
| Title: |
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and
transfers unto the Assignee named below all of the rights of the undersigned under the within
Warrant, with respect to the number of shares of Common Stock set forth below:
| NAME OF ASSIGNEE | ||||||||
ADDRESS |
||||||||
| NO. OF SHARES | ||||||||
and does hereby irrevocably constitute and appoint Attorney to make such transfer on
the books of XENONICS HOLDINGS, INC., maintained for the purpose, with full power of substitution
in the premises.
The undersigned also represents that, by assignment hereof, the Assignee acknowledges that
this Warrant and the shares of stock to be issued upon exercise hereof are being acquired for
investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended, or any state securities laws. Further,
the Assignee has acknowledged that upon exercise of this Warrant, the Assignee shall, if requested
by the Company, confirm in writing, in a form reasonably satisfactory to the Company, that the
shares of stock so purchased are being acquired for investment and not with a view toward
distribution or resale.
Name:
|
||||
| (Signature must conform in all respects to name of Xxxxxx as specified on the face of the Warrant) | ||||
Dated:
|
||||
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AMENDMENT TO WARRANT TO PURCHASE
COMMON STOCK OF XENONICS HOLDINGS, INC.
COMMON STOCK OF XENONICS HOLDINGS, INC.
Paragraph 2(c) of the Warrant, issued July 15, 2009, entitling the Holder (as defined therein)
to purchase common stock of Xenonics Holdings, Inc., is hereby amended to read in full as follows:
| “(c) the Exercise Price at which this Warrant may be exercised shall be $.65 per share.” |
Other than the foregoing amendment, the Warrant shall be unchanged and shall remain in full
force and effect.
Dated: May 4, 2010
| XENONICS HOLDINGS, Inc |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Chairman of the Board | |||
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