Contract
Exhibit
2.02
THIS
WARRANT AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
WARRANT
TO PURCHASE
ORDINARY
SHARES
OF
Expires
________, 20__
No.:
W-_______ Number of Shares: ____________
Date
of
Issuance: November __, 2007
FOR
VALUE
RECEIVED, the undersigned, BluePhoenix Solutions Ltd., an Israeli corporation
(together with its successors and assigns, the "Issuer"), hereby
certifies that ____________________________________ or its registered assigns
is
entitled to subscribe for and purchase, during the Term (as hereinafter
defined), up to ___________________ (_________) duly authorized, validly issued,
fully paid and non-assessable Ordinary Shares of the Issuer (subject to
adjustment as hereinafter provided), at an exercise price per share equal to
the
Warrant Price then in effect, subject, however, to the provisions and upon
the
terms and conditions hereinafter set forth. Capitalized terms used in
this Warrant and not otherwise defined herein shall have the respective meanings
specified in Section 8 hereof.
1.
Term. The
term of this Warrant shall commence on the date hereof and shall expire at
6:00
p.m., eastern time, on November, 201_ (such period being the "Term").
2. Method
of Exercise; Payment;
Issuance of New Warrant; Transfer and Exchange.
(a) Time
of
Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part during the Term commencing on the date
hereof.
(b) Method
of
Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise form
attached hereto duly executed) at the principal office of the Issuer, and by
the
payment to the Issuer of an amount of consideration
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therefor
equal to the Warrant Price in effect on the date of such exercise multiplied
by
the number of Ordinary Shares with respect to which this Warrant is then being
exercised, payable at such Holder's election (i) by certified or official bank
check or by wire transfer to an
account designated by the Issuer, (ii) by "cashless exercise" in
accordance with the provisions of subsection (c) of this Section 2, but only
when a registration statement under the Securities Act providing for the resale
of the Warrant Shares is not then in effect, or (iii) by a combination of the
foregoing methods of payment selected by the Holder of this Warrant (if the
conditions in section (ii) herein are met).
(c)
Cashless
Exercise. Notwithstanding any provisions herein to the
contrary and commencing on the earlier of (i) the date that the Warrant Shares
may be sold pursuant to Rule 144 upon a cashless exercise of this Warrant and
(ii) one (1) year following the Original Issue Date, in each case, if a
registration statement under the Securities Act providing for the resale of
the
Warrant Shares being exercised is not then in effect, in lieu of exercising
this
Warrant by payment of cash, the Holder may exercise this Warrant by a cashless
exercise and shall receive the number of Ordinary Shares equal to an amount
(as
determined below) by surrender of this Warrant at the principal office of the
Issuer together with the properly endorsed Notice of Exercise in which event
the
Issuer shall issue to the Holder a number of Ordinary Shares computed using
the
following formula:
X
= Y - (A)(Y)
B
|
Where
|
X
=
|
the
number of Ordinary Shares to be issued to the Holder.
|
|
|
Y
=
|
the
number of Ordinary Shares purchasable upon exercise of all of the
Warrant
assuming for such purpose cash exercise or, if only a portion of
the
Warrant is being exercised, the portion of the Warrant being exercised.
|
|
|
A
=
|
the
Warrant Price.
|
B
= the Per
Share Market Value of one Ordinary Share.
(d)
Issuance of Share
Certificates. In the event of any exercise of this Warrant in
accordance with and subject to the terms and conditions hereof, certificates
for
the Warrant Shares so purchased shall be dated the date of such exercise and
delivered to the Holder hereof within a reasonable time, not exceeding three
(3)
Trading Days after such exercise (the “Delivery Date”) or,
at the request of the Holder (provided that a registration statement under
the
Securities Act providing for the resale of the Warrant Shares is then in
effect), issued and delivered to the Depository Trust Company (“DTC”) account
on the
Holder’s behalf via the Deposit Withdrawal Agent Commission System (“DWAC”) within
a
reasonable time, not exceeding three (3) Trading Days after such exercise,
and
the Holder hereof shall be deemed for all purposes to be the holder of the
Warrant Shares so purchased as of the date of such
exercise. Notwithstanding the foregoing to the contrary, the Issuer
or its transfer agent shall only be obligated to issue and deliver the shares
to
the DTC on a holder’s behalf via DWAC if such exercise is in connection with a
sale and the Issuer and its
transfer agent are participating in DTC through the DWAC
system. The
Holder shall deliver this original Warrant, or an indemnification undertaking
with
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respect
to such Warrant in the case of
its loss, theft or destruction, at such time that this Warrant is fully
exercised. With respect to partial exercises of this Warrant, the
Issuer shall keep written records for the Holder of the number of Warrant Shares
exercised as of each date of exercise.
(e)
Compensation for
Buy-In on Failure to Timely Deliver Certificates Upon
Exercise. In addition to any other rights available to the
Holder, if the Issuer fails to cause its transfer agent to transmit to the
Holder a certificate or certificates representing the Warrant Shares pursuant
to
an exercise on or before the Delivery Date, and if after such date the Holder
is
required by its broker to purchase (in an open market transaction or otherwise)
Ordinary Shares to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then
the Issuer shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
Ordinary Shares so purchased exceeds (y) the amount obtained by multiplying
(A)
the number of Warrant Shares that the Issuer was required to deliver to the
Holder in connection with the exercise at issue times (B) the price at which
the
sell order giving rise to such purchase obligation was executed, and (2) at
the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or deliver
to
the Holder the number of Ordinary Shares that would have been issued had the
Issuer timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Ordinary Shares
having a total purchase price of $11,000 to cover a Buy-In with respect to
an
attempted exercise of Ordinary Shares with an aggregate sale price giving rise
to such purchase obligation of $10,000, under clause (1) of the immediately
preceding sentence the Issuer shall be required to pay the Holder $1,000. The
Holder shall provide the Issuer written notice indicating the amounts payable
to
the Holder in respect of the Buy-In, together with applicable confirmations
and
other evidence reasonably requested by the Issuer. Nothing herein
shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Issuer’s
failure to timely deliver certificates representing Ordinary Shares upon
exercise of this Warrant as required pursuant to the terms hereof. If
the Issuer fails to cause its transfer agent to transmit to the Holder a
certificate or certificates representing the Warrant Shares pursuant to this
Section 2(e)(i) by the Warrant Share Delivery Date, then the Holder will have
the right to rescind such exercise.
(f)
Transferability
of
Warrant. Subject to Section 5.1 of the Purchase Agreement,
this Warrant may be transferred by a Holder, in whole or in part, without the
consent of the Issuer. If transferred pursuant to this paragraph,
this Warrant may be transferred on the books of the Issuer by the Holder hereof
in person or by duly authorized attorney, upon surrender of this Warrant at
the
principal office of the Issuer, properly endorsed (by the Holder executing
an
assignment in the form attached hereto) and upon payment of any necessary
transfer tax or other governmental charge imposed upon such
transfer. This Warrant is exchangeable at the principal office of the
Issuer for Warrants to purchase the same aggregate number of Warrant Shares,
each new Warrant to represent the right to purchase such number of Warrant
Shares as the Holder hereof shall designate at the time of such
exchange. All Warrants issued on transfers or exchanges shall be
dated the Original Issue Date and shall be identical with this Warrant except
as
to the number of Warrant Shares issuable pursuant thereto.
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(g)
Continuing Rights
of
Holder. The Issuer will, at the time of or at any time after
each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing the extent, if any, of its continuing obligation to
afford to such Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this Warrant,
provided that if
any
such Holder shall fail to make any such request, the failure shall not affect
the continuing obligation of the Issuer to afford such rights to such
Holder.
(h)
Compliance with
Securities Laws. This Warrant shall be subject to the
provisions of Section 5.1 of the Purchase Agreement.
(i)
Accredited Investor
Status. In no event may the Holder exercise this Warrant in
whole or in part unless the Holder is an “accredited investor” as defined in
Regulation D under the Securities Act.
3.
Shares Fully Paid;
Reservation and Listing of Shares; Covenants.
(a)
Shares Fully
Paid. The Issuer
represents, warrants, covenants and agrees that all Warrant Shares which may
be
issued upon the exercise of this Warrant or otherwise hereunder will, when
issued in accordance with the terms of this Warrant, be duly authorized, validly
issued, fully paid and non-assessable and free from all taxes, liens and
charges created by
or through the Issuer. The Issuer further covenants and agrees that
during the period within which this Warrant may be exercised, the Issuer will
at
all times have authorized and reserved for the purpose of the issuance upon
exercise of this Warrant a number of authorized but unissued Ordinary
Shares equal to at least one
hundred percent (100%) of the number of Ordinary Shares issuable upon exercise
of this Warrant
without regard to any limitations on exercise.
(b)
Reservation. If
any Ordinary Shares required to be reserved for issuance upon exercise of this
Warrant or as otherwise provided hereunder require registration or qualification
with any Governmental Authority under any federal or state law before such
shares may be so issued, the Issuer will in good faith use its best efforts
as
expeditiously as possible at its expense to cause such shares to be duly
registered or qualified. If the Issuer shall list any Ordinary Shares
on any securities exchange or market it will, at its expense, list thereon,
and
maintain and increase when necessary such listing, of, all Warrant Shares from
time to time issued upon exercise of this Warrant or as otherwise provided
hereunder (provided that such Warrant Shares has been registered pursuant to
a
registration statement under the Securities Act then in effect), and, to the
extent permissible under the applicable securities exchange rules, all unissued
Warrant Shares which are at any time issuable hereunder, so long as any Ordinary
Shares shall be so listed. The Issuer will also so list on each
securities exchange or market, and will maintain such listing of, any other
securities which the Holder of this Warrant shall be entitled to receive upon
the exercise of this Warrant if at the time any securities of the same class
shall be listed on such securities exchange or market by the
Issuer.
(c)
Covenants. The
Issuer shall not by any action including, without limitation, amending the
Articles of Association or the Memorandum of Association of the Issuer, or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid or seek
to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all
such
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terms
and
in the taking of all such actions as may be necessary or appropriate to protect
the rights of the Holder hereof against dilution (to the extent specifically
provided herein) or impairment. Without limiting the generality of
the foregoing, the Issuer will (i) not permit the par value, if any, of the
Ordinary Shares to exceed the then effective Warrant Price, (ii) not amend
or
modify any provision of the Articles of Association or Memorandum of Association
of the Issuer in any manner that would adversely affect the rights of the
Holders of the Warrants, (iii) take all such action as may be reasonably
necessary in order that the Issuer may validly and legally issue fully paid
and
nonassessable Ordinary Shares, free and clear of any liens, claims, encumbrances
and restrictions (other than as provided herein) upon the exercise of this
Warrant, and (iv) use its best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be reasonably necessary to enable the Issuer to perform its
obligations under this Warrant.
(d)
Loss, Theft,
Destruction of Warrants. Upon receipt of evidence satisfactory
to the Issuer of the ownership of and the loss, theft, destruction or mutilation
of any Warrant and, in the case of any such loss, theft or destruction, upon
receipt of indemnity or security satisfactory to the Issuer or, in the case
of
any such mutilation, upon surrender and cancellation of such Warrant, the Issuer
will make and deliver, in lieu of such lost, stolen, destroyed or mutilated
Warrant, a new Warrant of like tenor and representing the right to purchase
the
same number of Ordinary Shares.
(e)
Payment
of
Taxes. The
Issuer will pay any documentary stamp taxes attributable to the initial issuance
of the Warrant Shares issuable upon exercise of this Warrant; provided,
however,
that the Issuer shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issuance or delivery of any certificates representing Warrant Shares
in a
name other than that of the Holder in respect to which such shares are
issued.
4.
Adjustment of Warrant
Price and Number of Shares Issuable Upon Exercise. The Warrant
Price and the number of Warrant Shares that may be purchased upon exercise
of
this Warrant shall be subject to adjustment from time to time as set forth
in
this Section 4. The Issuer shall give the Holder notice of any event described
below which requires an adjustment pursuant to this Section 4 in accordance
with
the notice provisions set forth in Section 5.
(a)
Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or
Sale. In case the Issuer after the Original Issue Date shall
do any of the following (each, a "Triggering Event"):
(a) consolidate or merge with or into any other Person and the Issuer shall
not
be the continuing or surviving corporation of such consolidation or merger,
or
(b) permit any other Person to consolidate with or merge into the Issuer and
the
Issuer shall be the continuing or surviving Person but, in connection with
such
consolidation or merger, any Capital Shares of the Issuer shall be changed
into
or exchanged for Securities of any other Person or cash or any other property,
or (c) transfer all or substantially all of its properties or assets to any
other Person, or (d) effect a capital reorganization or reclassification of
its
Capital Shares, then, and as a condition to each such Triggering Event, proper
and adequate provision shall be made so that, upon the basis and the terms
and
in the manner provided in this Warrant, the Holder of this Warrant shall be
entitled upon the exercise hereof at any time after the consummation of such
Triggering Event, to the extent this Warrant is not exercised prior to such
Triggering Event, to
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receive
at the Warrant Price in effect at the time immediately prior to the consummation
of such Triggering Event in lieu of the Ordinary Shares issuable upon such
exercise of this Warrant prior to such Triggering Event, the Securities, cash
and property to which such Holder would have been entitled upon the consummation
of such Triggering Event if such Holder had exercised the rights represented
by
this Warrant immediately prior thereto (including the right of a shareholder
to
elect the type of consideration it will receive upon a Triggering Event),
subject to adjustments (subsequent to such corporate action) as nearly
equivalent as possible to the adjustments provided for elsewhere in this Section
4. Notwithstanding anything to the contrary, in the event of a
Triggering Event that is (1) an all cash transaction, (2) a “Rule 13e-3
transaction” as defined in Rule 13e-3 under the Securities Exchange Act of 1934,
as amended, or (3) a Triggering Event involving a person or entity not traded
on
a national securities exchange, the Nasdaq Global Select Market, the Nasdaq
Global Market, or the Nasdaq Capital Market, the Issuer or any successor entity
shall pay at the Holder’s option, exercisable at any time concurrently with or
within 30 days after the consummation of the Triggering Event, an amount of
cash
equal to the value of this Warrant as determined in accordance with the Black
Scholes Option Pricing Model obtained from the “OV” function on Bloomberg L.P.
using (i) a price per share of Common Stock equal to the VWAP of the Common
Stock for the Trading Day immediately preceding the date of consummation of
the
applicable Triggering Event, (ii) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the remaining
term
of this Warrant as of the date of consummation of the applicable Triggering
Event and (iii) an expected volatility equal to the 100 day volatility obtained
from the “HVT” function on Bloomberg L.P. determined as of the Trading Day
immediately following the public announcement of the applicable Triggering
Event, but in no event shall such number be greater than 60.
(b)
Dividends,
Subdivisions and Combinations. If at any time the Issuer
shall:
(i)
make or issue or set a record date for the holders of the Ordinary Shares for
the purpose of entitling them to receive a dividend payable in, or other
distribution of, Ordinary Shares,
(ii)
subdivide its outstanding Ordinary Shares into a larger number of Ordinary
Shares, or
(iii)
combine its outstanding Ordinary Shares into a smaller number of Ordinary
Shares,
then
(1)
the number of Ordinary Shares for which this Warrant is exercisable immediately
after the occurrence of any such event shall be adjusted to equal the number
of
Ordinary Shares which a record holder of the same number of Ordinary Shares
for
which this Warrant is exercisable immediately prior to the occurrence of such
event would own or be entitled to receive after the happening of such event,
and
(2) the Warrant Price then in effect shall be adjusted to equal (A) the Warrant
Price then in effect multiplied by the number of Ordinary Shares for which
this
Warrant is exercisable immediately prior to the adjustment divided by (B) the
number of Ordinary Shares for which this Warrant is exercisable immediately
after such adjustment.
(c)
Certain Other
Distributions. If at any time the Issuer shall make or issue
or set a record date for the holders of the Ordinary Shares for the purpose
of
entitling them to receive any dividend or other distribution
of:
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(i)
cash (other than a cash dividend payable out of earnings or earned surplus
legally available for the payment of dividends under the laws of the
jurisdiction of incorporation of the Issuer),
(ii)
any evidences of its indebtedness, any class of any shares or any other
securities or property of any nature whatsoever (other than cash, Ordinary
Share
Equivalents or Ordinary Shares), or
(iii)
any warrants or other rights to subscribe for or purchase any evidences of
its
indebtedness, any class of any shares or any other securities or property of
any
nature whatsoever (other than cash, Ordinary Share Equivalents or Ordinary
Shares),
then
(1)
the number of Ordinary Shares for which this Warrant is exercisable shall be
adjusted to equal the product of the number of Ordinary Shares for which this
Warrant is exercisable immediately prior to such adjustment multiplied by a
fraction (A) the numerator of which shall be the Per Share Market Value of
the
Ordinary Shares at the date of taking such record and (B) the denominator of
which shall be such Per Share Market Value minus the amount allocable to one
Ordinary Share of any such cash so distributable and of the fair value (as
determined in good faith by the Board of Directors of the Issuer and supported
by an opinion from an investment banking firm mutually agreed upon by the Issuer
and the Holder) of any and all such evidences of indebtedness, shares, other
securities or property or warrants or other subscription or purchase rights
so
distributable, and (2) the Warrant Price then in effect shall be adjusted to
equal (A) the Warrant Price then in effect multiplied by the number of Ordinary
Shares for which this Warrant is exercisable immediately prior to the adjustment
divided by (B) the number of Ordinary Shares for which this Warrant is
exercisable immediately after such adjustment. A reclassification of
the Ordinary Shares (other than a change in par value, or from par value to
no
par value or from no par value to par value) into Ordinary Shares and shares
of
any other class shall be deemed a distribution by the Issuer to the holders
of
its Ordinary Shares of such shares of such other class within the meaning of
this Section 4(c) and, if the outstanding Ordinary Shares shall be changed
into
a larger or smaller number of Ordinary Shares as a part of such
reclassification, such change shall be deemed a subdivision or combination,
as
the case may be, of the outstanding Ordinary Shares within the meaning of
Section 4(b).
(d)
Subsequent Equity
Sales. If the Issuer or any Subsidiary thereof, as applicable,
at any time while this Warrant is outstanding, shall sell or grant any option
to
purchase, or sell or grant any right to reprice, or otherwise dispose of or
issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Ordinary Shares or Ordinary Share Equiuivalents entitling
any
Person to acquire Ordinary Shares, at an effective price per share less than
the
then Exercise Price (such lower price, the “Base Share Price” and
such issuances collectively, a “Dilutive Issuance”)
(if the holder of the Ordinary Shares or Ordinary Share Equiuivalents so issued
shall at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise,
or
due to warrants, options or rights per share which are issued in connection
with
such issuance, be entitled to receive Ordinary Shares at an effective price
per
share which is less than the Exercise
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Price,
such issuance shall be deemed to have occurred for less than the Exercise Price
on such date of the Dilutive Issuance), then (a) from the date hereof until
the
first anniversary of the date hereof, the Exercise Price shall be reduced and
only reduced to equal the Base Share Price and (b) after the one year
anniversary date of the date hereof, the Exercise Price shall be reduced and
only reduced by multiplying the Exercise Price by a fraction, the numerator
of
which is the number of Ordinary Shares issued and outstanding immediately prior
to the Dilutive Issuance plus the number of Ordinary Shares which the offering
price for such Dilutive Issuance would purchase at the then Exercise Price,
and
the denominator of which shall be the sum of the number of Ordinary Shares
issued and outstanding immediately prior to the Dilutive Issuance plus the
number of Ordinary Shares so issued or issuable in connection with the Dilutive
Issuance (provided that if the numerator exceeds the denominator, no adjustment
shall occur). Such adjustment shall be made whenever such Ordinary
Shares or Ordinary Share Equivalents are issued. Notwithstanding the
foregoing, no adjustments shall be made, paid or issued under this Section
4(d)
in respect of an Exempt Issuance (as defined in the Purchase
Agreement). The Issuer shall notify the Holder in writing, no later
than the Trading Day following the issuance of any Ordinary Shares or Ordinary
Share Equivalents subject to this Section 4(d), indicating therein the
applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the
Issuer provides a Dilutive Issuance Notice pursuant to this Section 4(d), upon
the occurrence of any Dilutive Issuance, after the date of such Dilutive
Issuance the Holder is entitled to receive a number of Warrant Shares based
upon
the Base Share Price regardless of whether the Holder accurately refers to
the
Base Share Price in the Notice of Exercise.
(e)
Other Provisions
Applicable to Adjustments under this Section. The following
provisions shall be applicable to the making of adjustments of the number
of Ordinary Shares for which this Warrant is exercisable and the Warrant Price
then in effect provided for in this Section 4:
(i)
Computation of
Consideration. To the extent that any Ordinary Shares or any
Ordinary Share Equivalents (or any warrants or other rights therefor) shall
be
issued for cash consideration, the consideration received by the Issuer therefor
shall be the amount of the cash received by the Issuer therefor, or, if such
Ordinary Shares or Ordinary Share Equivalents are offered by the Issuer for
subscription, the subscription price, or, if such Ordinary Shares or Ordinary
Share Equivalents are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price (in any
such
case subtracting any amounts paid or receivable for accrued interest or accrued
dividends and without taking into account any compensation, discounts or
expenses paid or incurred by the Issuer for and in the underwriting of, or
otherwise in connection with, the issuance thereof). In connection
with any merger or consolidation in which the Issuer is the surviving
corporation (other than any consolidation or merger in which the previously
outstanding Ordinary Shares of the Issuer shall be changed to or exchanged
for
the stock or other securities of another corporation), the amount of
consideration therefore shall be, deemed to be the fair value, as determined
reasonably and in good faith by the Board, of such portion of the assets and
business of the nonsurviving corporation as the Board may determine to be
attributable to such Ordinary Shares or Ordinary Share Equivalents, as the
case
may be. The consideration for any Ordinary Shares issuable pursuant
to any warrants or
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other
rights to subscribe for or purchase the same shall be the consideration received
by the Issuer for issuing such warrants or other rights plus the additional
consideration payable to the Issuer upon exercise of such warrants or other
rights. The consideration for any Ordinary Shares issuable pursuant
to the terms of any Ordinary Share Equivalents shall be the consideration
received by the Issuer for issuing warrants or other rights to subscribe
for or purchase such Ordinary Share Equivalents, plus the consideration paid
or
payable to the Issuer in respect of the subscription for or purchase of such
Ordinary Share Equivalents, plus the additional consideration, if any, payable
to the Issuer upon the exercise of the right of conversion or exchange in such
Ordinary Share Equivalents. In the event of any consolidation or
merger of the Issuer in which the Issuer is not the surviving corporation or
in
which the previously outstanding Ordinary Shares of the Issuer shall be changed
into or exchanged for the stock or other securities of another corporation,
or
in the event of any sale of all or substantially all of the assets of the Issuer
for stock or other securities of any corporation, the Issuer shall be deemed
to
have issued a number of shares of its Ordinary Shares for stock or securities
or
other property of the other corporation computed on the basis of the actual
exchange ratio on which the transaction was predicated, and for a consideration
equal to the fair market value on the date of such transaction of all such
stock
or securities or other property of the other corporation. In the
event any consideration received by the Issuer for any securities consists
of
property other than cash, the fair market value thereof at the time of issuance
or as otherwise applicable shall be as determined in good faith by the
Board. In the event Ordinary Shares are issued with other shares or
securities or other assets of the Issuer for consideration which covers both,
the consideration computed as provided in this Section 4(f)(i) shall be
allocated among such securities and assets as determined in good faith by the
Board.
(ii)
When Adjustments
to Be
Made. The adjustments required by this Section 4 shall be made
whenever and as often as any specified event requiring an adjustment shall
occur, except that any adjustment of the number of Ordinary Shares for which
this Warrant is exercisable that would otherwise be required may be postponed
(except in the case of a subdivision or combination of Ordinary Shares, as
provided for in Section 4(b)) up to, but not beyond the date of exercise if
such
adjustment either by itself or with other adjustments not previously made adds
or subtracts less than one percent (1%) of the Ordinary Shares for which this
Warrant is exercisable immediately prior to the making of such
adjustment. Any adjustment representing a change of less than such
minimum amount (except as aforesaid) which is postponed shall be carried forward
and made as soon as such adjustment, together with other adjustments required
by
this Section 4 and not previously made, would result in a minimum adjustment
or
on the date of exercise. For the purpose of any adjustment, any specified event
shall be deemed to have occurred at the close of business on the date of its
occurrence.
(iii)
Fractional
Interests. In computing adjustments under this Section 4,
fractional interests in Ordinary Shares shall be taken into account to the
nearest one one-hundredth (1/100th)
of a
share.
(iv)
When Adjustment
Not
Required. If the Issuer shall take a record of the holders of
its Ordinary Shares for the purpose of entitling them to receive a dividend
or
distribution or subscription or purchase rights and shall, thereafter and before
the distribution to stockholders thereof, legally abandon its plan to pay or
deliver such dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the
-10-
taking
of
such record and any such adjustment previously made in respect thereof shall
be
rescinded and annulled.
(f)
Form of Warrant
after
Adjustments. The form of this Warrant need not be changed
because of any adjustments in the Warrant Price or the number and kind of
Securities purchasable upon the exercise of this Warrant.
5.
Notice of
Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 4 hereof (for purposes of this
Section 5, each an "adjustment"), the
Issuer shall cause its Chief Financial Officer to prepare and execute a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board made
any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such adjustment, and shall cause copies of such certificate
to
be delivered to the Holder of this Warrant promptly after each
adjustment. Any dispute between the Issuer and the Holder of this
Warrant with respect to the matters set forth in such certificate may at the
option of the Holder of this Warrant be submitted to a national or regional
accounting firm reasonably acceptable to the Issuer and the Holder, provided that the
Issuer shall have ten (10) days after receipt of notice from such Holder of
its
selection of such firm to object thereto, in which case such Holder shall select
another such firm and the Issuer shall have no such right of
objection. The firm selected by the Holder of this Warrant as
provided in the preceding sentence shall be instructed to deliver a written
opinion as to such matters to the Issuer and such Holder within thirty (30)
days
after submission to it of such dispute. Such opinion shall be final
and binding on the parties hereto. The costs and expenses of the
initial accounting firm shall be paid equally by the Issuer and the Holder
and,
in the case of an objection by the Issuer, the costs and expenses of the
subsequent accounting firm shall be paid in full by the Issuer.
6.
Fractional
Shares. No fractional Warrant Shares will be issued in
connection with any exercise hereof, but in lieu of such fractional shares,
the
Issuer shall round the number of shares to be issued upon exercise up to the
nearest whole number of shares.
7.
Ownership
Caps and Certain Exercise Restrictions. The Issuer shall
not
effect any exercise of this Warrant, and a Holder shall not have the right
to
exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to
the
extent that after giving effect to such issuance after exercise as set forth
on
the applicable Notice of Exercise, the Holder (together with the Holder’s
Affiliates, and any other person or entity acting as a group together with
the
Holder or any of the Holder’s Affiliates), would beneficially own in excess of
the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of Ordinary Shares beneficially owned by
the
Holder and its Affiliates shall include the number of Ordinary Shares issuable
upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of Ordinary Shares which would be issuable
upon (A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates and (B) exercise
or
conversion of the unexercised or nonconverted portion of any other securities
of
the Issuer (including, without limitation, any other Ordinary Share Equivalents)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
affiliates. Except as set forth in
-11-
the
preceding sentence, for purposes of this Section 7, beneficial ownership shall
be calculated in accordance with Section 13(d) of the Exchange Act and the
rules
and regulations promulgated thereunder, it being acknowledged by the Holder
that
the Issuer is not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is solely
responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this
Section 7 applies, the determination of whether this Warrant is exercisable
(in
relation to other securities owned by the Holder together with any Affiliates)
and of which portion of this Warrant is exercisable shall be in the sole
discretion of the Holder, and the submission of a Notice of Exercise shall
be
deemed to be the Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable, in each case
subject to the Beneficial Ownership Limitation, and the Issuer shall have no
obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 7, in determining the number
of outstanding Ordinary Shares, a Holder may rely on the number of outstanding
Ordinary Shares as reflected in (x) the Issuer’s most recent annual report, (y)
a more recent public announcement by the Issuer or (z) any other notice by
the
Issuer or the Issuer’s Transfer Agent setting forth the number of Ordinary
Shares outstanding. Upon the written or oral request of a Holder, the
Issuer shall within two Trading Days confirm orally and in writing to the Holder
the number of Ordinary Shares then outstanding. In any case, the number of
outstanding Ordinary Shares shall be determined after giving effect to the
conversion or exercise of securities of the Issuer, including this Warrant,
by
the Holder or its Affiliates since the date as of which such number of
outstanding Ordinary Shares was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of Ordinary Shares outstanding
immediately after giving effect to the issuance of Ordinary Shares issuable
upon
exercise of this Warrant. The Holder, upon not less than 61 days’
prior notice to the Issuer, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 7, provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of Ordinary Shares
outstanding immediately after giving effect to the issuance of Ordinary Shares
upon exercise of this Warrant held by the Holder and the provisions of this
Section 7 shall continue to apply. Any such increase or decrease will
not be effective until the 61st
day
after such notice is delivered to the Issuer. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 7 to correct this paragraph
(or
any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder
of
this Warrant.
8.
Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
“Board"
shall mean the
Board of Directors of the Issuer.
"Capital
Shares" means
and includes (i) any and all shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including,
without limitation, shares of preferred or preference stock, (ii) all
partnership
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interests
(whether general or limited) in any Person which is a partnership, (iii) all
membership interests or limited liability company interests in any limited
liability company, and (iv) all equity or ownership interests in any Person
of
any other type.
"Convertible
Securities" means evidences of Indebtedness, Capital Shares or other
Securities which are or may be at any time convertible into or exchangeable
for
Ordinary Shares. The term "Convertible Security" means one of the
Convertible Securities.
"Governmental
Authority" means any governmental, regulatory or self-regulatory entity,
department, body, official, authority, commission, board, agency or
instrumentality, whether federal, state or local, and whether domestic or
foreign.
"Holders"
mean the
Persons who shall from time to time own any Warrant. The term
"Holder" means one of the Holders.
"Independent
Appraiser" means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial statements
of the Issuer) that is regularly engaged in the business of appraising the
Capital Shares or assets of corporations or other entities as going concerns,
and which is not affiliated with either the Issuer or the Holder of any
Warrant.
"Issuer"
means
BluePhoenix Solutions Ltd., an Israeli corporation, and its
successors.
"Majority
Holders"
means at any time the Holders of Warrants exercisable for a majority of the
Warrant Shares issuable under the Warrants at the time outstanding.
"Ordinary
Shares"
means the ordinary shares, NIS 0.01 par value per share, of the Issuer and
any
other Capital Shares into which such shares may hereafter be
changed.
"Ordinary
Share
Equivalent" means any Convertible Security or warrant, option or other
right to subscribe for or purchase any Convertible Security.
"Original
Issue Date"
means November __, 2007.
“Outstanding
Ordinary
Shares” means, at any given time, the aggregate amount of outstanding
Ordinary Shares, assuming full exercise, conversion or exchange (as applicable)
of all options, warrants and other Securities which are convertible into or
exercisable or exchangeable for, and any right to subscribe for, Ordinary Shares
that are outstanding at such time.
"Person"
means an
individual, corporation, limited liability company, partnership, joint stock
company, trust, unincorporated organization, joint venture, Governmental
Authority or other entity of whatever nature.
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"Per
Share Market
Value" means on any particular date (a) the daily volume weighted average
price per Ordinary Share on such date on the Nasdaq Global Market or
another registered
national stock exchange on which the Ordinary Shares are then listed, or if
there is no such price on such date, then the volume weighted average price
on
such exchange or quotation system on the date nearest preceding such date,
or
(b) if the Ordinary Shares are not listed then on the Nasdaq Global Market
or
any registered national stock exchange, the volume weighted average price for
a
share of Ordinary Shares in the over-the-counter market, as reported by the
OTC
Bulletin Board or in the National Quotation Bureau Incorporated or similar
organization or agency succeeding to its functions of reporting prices) at
the
close of business on such date, or (c) if the Ordinary Shares are not then
reported by the OTC Bulletin Board or the National Quotation Bureau Incorporated
(or similar organization or agency succeeding to its functions of reporting
prices), then the "Pink Sheet" quotes for the applicable Trading Days preceding
such date of determination, or (d) if the Ordinary Shares are not then publicly
traded the fair market value of an Ordinary Share as determined by an
Independent Appraiser selected in good faith by the Majority Holders; provided, however,
that the
Issuer, after receipt of the determination by such Independent Appraiser, shall
have the right to select an additional Independent Appraiser, in which case,
the
fair market value shall be equal to the average of the determinations by each
such Independent Appraiser; and provided, further
that all
determinations of the Per Share Market Value shall be appropriately adjusted
for
any share dividends, share splits or other similar transactions during such
period. The determination of fair market value by an Independent
Appraiser shall be based upon the fair market value of the Issuer determined
on
a going concern basis as between a willing buyer and a willing seller and taking
into account all relevant factors determinative of value, and shall be final
and
binding on all parties. In determining the fair market value of any
Ordinary Shares, no consideration shall be given to any restrictions on transfer
of the Ordinary Shares imposed by agreement or by federal or state securities
laws, or to the existence or absence of, or any limitations on, voting
rights.
"Purchase
Agreement"
means the Securities Purchase Agreement dated as of November 19, 2007,
among the Issuer and the Purchasers.
"Purchasers"
means the
purchasers of Ordinary Shares and the Warrants issued by the Issuer pursuant
to
the Purchase Agreement.
"Securities"
means any
debt or equity securities of the Issuer, whether now or hereafter authorized,
any instrument convertible into or exchangeable for Securities or a Security,
and any option, warrant or other right to purchase or acquire any
Security. "Security" means one of the Securities.
"Securities
Act" means
the Securities Act of 1933, as amended, or any similar federal statute then
in
effect.
"Subsidiary"
means any
corporation at least 50% of whose outstanding Voting Shares shall at the time
be
owned directly or indirectly by the Issuer or by one or more of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
-14-
"Term"
has the meaning
specified in Section 1 hereof.
"Trading
Day" means
(a) a day on which the Ordinary Shares are traded on the Nasdaq Global Market,
or (b) if the Ordinary Shares are not traded on the Nasdaq Global Market, a
day
on which the Ordinary Shares are quoted in the over-the-counter market as
reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding its functions of reporting prices); provided, however,
that in the
event that the Ordinary Shares are not listed or quoted as set forth in (a)
or
(b) hereof, then Trading Day shall mean any day except Saturday, Sunday and
any
day which shall be a legal holiday or a day on which banking institutions in
the
State of New York or Israel are authorized or required by law or other
government action to close.
"Voting
Shares" means,
as applied to the Capital Shares of any corporation, Capital Shares of any
class
or classes (however designated) having ordinary voting power for the election
of
a majority of the members of the Board of Directors (or other governing body)
of
such corporation, other than Capital Shares having such power only by reason
of
the happening of a contingency.
"Warrants"
means the
Warrants issued and sold pursuant to the Purchase Agreement, including, without
limitation, this Warrant, and any other warrants of like tenor issued in
substitution or exchange for any thereof pursuant to the provisions of Section
2(c), 2(d) or 2(e) hereof or of any of such other Warrants.
"Warrant
Price"
initially means $21.88, as such price may be adjusted from time to time as
shall
result from the adjustments specified in this Warrant, including Section 4
hereto.
"Warrant
Share Number"
means at any time the aggregate number of Warrant Shares which may at such
time
be purchased upon exercise of this Warrant, after giving effect to all prior
adjustments and increases to such number made or required to be made under
the
terms hereof.
"Warrant
Shares" means
Ordinary Shares issuable upon exercise of any Warrant or Warrants or otherwise
issuable pursuant to any Warrant or Warrants.
9.
Other
Notices. In case at any time:
|
|
(A)
|
the
Issuer shall make any distributions to the holders of Ordinary Shares;
or
|
|
|
(B)
|
the
Issuer shall authorize the granting to all holders of its Ordinary
Shares
of rights to subscribe for or purchase any shares of Capital Shares
of any
class or other rights; or
|
|
|
(C)
|
there
shall be any reclassification of the Capital Shares of the Issuer;
or
|
-15-
|
|
(D)
|
there
shall be any capital reorganization by the Issuer; or
|
|
|
(E)
|
there
shall be any (i) consolidation or merger involving the Issuer or
(ii)
sale, transfer or other disposition of all or substantially all of
the
Issuer's property, assets or business (except a merger or other
reorganization in which the Issuer shall be the surviving corporation
and
its shares of Capital Shares shall continue to be outstanding and
unchanged and except a consolidation, merger, sale, transfer or other
disposition involving a wholly-owned Subsidiary); or
|
|
|
(F)
|
there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of the Issuer or any partial liquidation of the Issuer or distribution
to
holders of Ordinary Shares;
|
then,
in
each of such cases, the Issuer shall give written notice to the Holder of the
date on which (i) the books of the Issuer shall close or a record shall be
taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take
place. Such notice also shall specify the date as of which the
holders of Ordinary Shares of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Ordinary Shares for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the action in question
and not less than ten (10) days prior to the record date or the date on which
the Issuer's transfer books are closed in respect thereto. This
Warrant entitles the Holder to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Ordinary Shares.
10.
Amendment and
Waiver. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by
a
written instrument or written instruments executed by the Issuer and the
Holder. No consideration shall be offered or paid to any person to
amend or consent to a waiver or modification of any provision of this Warrant
unless the same consideration is also offered to all holders of the
Warrants.
11.
Governing Law;
Jurisdiction. This Warrant shall be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction. This
Warrant shall not be interpreted or construed with any presumption against
the
party causing this Warrant to be drafted. The Issuer and the Holder
agree that venue for any dispute arising under this Warrant will lie exclusively
in the state or federal courts located in New York County, New York, and the
parties irrevocably waive any right to raise forum non conveniens or any
other argument that New York is not the proper venue. The Issuer and
the Holder irrevocably consent to personal jurisdiction in the state and federal
courts of the state of
-16-
New
York. The Issuer and the Holder consent to process being served in
any such suit, action or proceeding by mailing a copy thereof to such party
at
the address in effect for notices to it under this Warrant and agrees that
such
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 11 shall affect or limit any right
to serve process in any other manner permitted by law. The Issuer and
the Holder hereby agree that the prevailing party in any suit, action or
proceeding arising out of or relating to this Warrant or the Purchase Agreement,
shall be entitled to reimbursement for reasonable legal fees from the
non-prevailing party. The parties hereby waive all rights to a trial
by jury.
12.
Notices. Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy or facsimile at the address or number designated below
(if
delivered on a business day during normal business hours where such notice
is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
If
to the
Issuer:
BluePhoenix Solutions Ltd.
0
Xxxxxx
Xxxxxx
Xxxxxxx
00000
Xxxxxx
Attention:
Xxxx Xxxxxx and Xxxxx Xxxxx
Tel.
No.:
000-(0)-000-0000
Fax
No.:
000-(0)-000-0000
with
copies (which copies
shall
not
constitute notice)
to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
|
If
to any Holder:
|
At
the address of such Holder set forth on such Holder’s signature page
attached to the Purchase Agreement, or as specified in writing by
such
Holder with copies to such Holder’s counsel as set forth on such signature
page or as specified in writing by such Holder.
|
Any
party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
13.
Warrant
Agent. The Issuer may, by written notice to each Holder of
this Warrant, appoint an agent having an office in New York, New York for the
purpose of issuing Warrant Shares on the exercise of this Warrant pursuant
to
subsection (b) of Section 2 hereof, exchanging
-17-
this
Warrant pursuant to subsection (d) of Section 2 hereof or replacing this Warrant
pursuant to subsection (d) of Section 3 hereof, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall
be made at such office by such agent.
14.
Remedies. The
Issuer stipulates that the remedies at law of the Holder of this Warrant in
the
event of any default or threatened default by the Issuer in the performance
of
or compliance with any of the terms of this Warrant are not and will not be
adequate and that, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
15.
Successors and
Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of the
Issuer, the Holder hereof and (to the extent provided herein) the Holders of
Warrant Shares issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Shares.
16.
Modification and
Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision
hereof is found to be unenforceable, then such provision shall be deemed
modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect
the
other provisions of this Warrant, but this Warrant shall be construed as if
such
unenforceable provision had never been contained herein.
17.
Headings. The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
18.
Registration
Rights. The
Holder of this Warrant is entitled to the benefit of certain registration rights
with respect to the Warrant Shares issuable upon the exercise of this Warrant
pursuant to that certain Registration Rights Agreement, of even date herewith,
by and among the Issuer and Persons listed on Schedule I thereto (the
“Registration
Rights Agreement”) and the
registration rights with respect to the Warrant Shares issuable upon the
exercise of this Warrant by any subsequent Holder may only be assigned in
accordance with the terms and provisions of the Registrations Rights
Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-18-
IN
WITNESS WHEREOF, the Issuer has executed this Warrant as of the day and year
first above written.
By:
Name:
Title:
-19-
EXERCISE
FORM
WARRANT
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ Ordinary Shares of BluePhoenix Solutions Ltd.
covered by the within Warrant.
Dated:
_________________
Signature _____________________
Address
____________________
_____________________
Number
of
Ordinary Shares beneficially owned or deemed beneficially owned by the Holder
on
the date of Exercise: _________________________
The
undersigned is an “accredited investor” as defined in Regulation D under the
Securities Act of 1933, as amended.
|
|
The
undersigned intends that payment of the Warrant Price shall be made
as
(check one):
|
Cash
Exercise_______
Cashless
Exercise_______
If
the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $________
by
certified or official bank check (or via wire transfer) to the Issuer in
accordance with the terms of the Warrant.
If
the
Holder has elected a Cashless Exercise, a certificate shall be issued to the
Holder for the number of shares equal to the whole number portion of the product
of the calculation set forth below, which is ___________. The
Issuer shall pay a cash adjustment in respect of the fractional portion of
the
product of the calculation set forth below in an amount equal to the product
of
the fractional portion of such product and the Per Share Market Value on the
date of exercise, which product is ____________.
X
= Y -
(A)(Y)
B
Where:
The
number of Ordinary Shares to be issued to the Holder __________________(“X”).
The
number of Ordinary Shares purchasable upon exercise of all of the Warrant or,
if
only a portion of the Warrant is being exercised, the portion of the Warrant
being exercised ___________________________ (“Y”).
The
Warrant Price ______________ (“A”).
The
Per
Share Market Value of one Ordinary Share _______________________
(“B”).
-20-
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and
does
irrevocably constitute and appoint _____________, attorney, to transfer the
said
Warrant on the books of the within named corporation.
Dated:
_________________ Signature
___________________________
Address
_____________________
_____________________
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ Warrant Shares evidenced
by
the within Warrant together with all rights therein, and does irrevocably
constitute and appoint ___________________, attorney, to transfer that part
of
the said Warrant on the books of the within named corporation.
Dated:
_________________ Signature ___________________________
Address
_____________________
_____________________
FOR
USE
BY THE ISSUER ONLY:
This
Warrant No. W-___ canceled (or transferred or exchanged) this _____ day of
___________, _____, Ordinary Shares issued therefor in the name of
_______________, Warrant No. W-_____ issued for ____ Ordinary Shares in the
name
of _______________.
-21-
