EXHIBIT 10.19
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. PAW-1 Number of Shares Purchasable
Issue Date: October 14, 2003 Upon Exercise of Warrant: 16,320
Void after 5:00 p.m. Washington, D.C., Time on October 14, 2008
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
PLACEMENT AGENT'S WARRANT
This is to certify that, subject to the provisions of this Placement
Agent's Warrant (the "Warrant") and for value received, Xxxxxxx Xxxxxx & Company
Financial Services, Inc. (the "Holder"),is entitled to purchase Sixteen Thousand
Three Hundred Twenty (16,320) 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 One Dollar Ninety Five Cents ($1.95) per share, subject to
adjustment as set forth herein (the "Exercise Price"), at any time during the
period beginning October 14, 2003 (the "Issue Date"), and ending five (5) years
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 number of shares specified in such form. If
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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.
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 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.
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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 Common Stock immediately
theretofore purchasable and receivable upon the exercise of the rights
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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
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.
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(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
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,
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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 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 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.
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(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 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
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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 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).
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(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 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 in form and substance
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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.
13. AGREEMENT OF WARRANT HOLDERS. The Holder, by his acceptance
thereof, consents and agrees with the Company and any Transfer or Warrant Agent
that:
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(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 absolute, final and unconditional
character and nature of this Warrant shall be in any way invalidated,
unempowered or affected.
11
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.]
12
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.
[SEAL] By: /S/ XXXXXXX X. XXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman & CEO
Attest:
By: /S/ XXXXXX X. XXXXXX
--------------------
Secretary
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Annex A to Common Stock Purchase Warrant
FORM OF SUBSCRIPTION
--------------------
(Complete and sign only upon exercise of the Placement
Agent's Warrant in whole or in part.)
To: Guardian Technologies International, Inc.
The undersigned, the Holder of the attached Placement Agent's Warrant
(No. PAW-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 Placement Agent's 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 Placement
Agent's Warrant to purchase fewer than all of the shares of Common Stock (or
other securities issuable pursuant to the terms of the Placement Agent's
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 Placement Agent's Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers to the right represented by the Placement Agent's Warrant (No. PAW-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 Placement Agent's Warrant on the warrant register of Guardian
Technologies International, Inc., the issuer of the Placement Agent's 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:
