EXHIBIT 10.7
WARRANT
THIS WARRANT AND THE SECURITIES PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS, UNLESS THE PROPOSED
TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR
REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
GLOBAL RESOURCE CORPORATION
WARRANT
No. ___ December 21, 2007
THIS CERTIFIES that, for value received, PROFESSIONAL OFFSHORE OPPORTUNITY
FUND LTD., or its permitted assigns (the "Holder"), shall be entitled to
subscribe for and purchase from GLOBAL RESOURCE CORPORATION, a Nevada
corporation (the "Corporation"), Six Hundred Twenty Five Thousand (625,000)
shares (subject to adjustment as provided herein, the "Warrant Shares") of the
Corporation's Common Stock at the exercise price determined below (the "Exercise
Price" or the "Exercise Price Per Share") for each Warrant Share, during the
Exercise Period (as defined in Section 1), pursuant to the terms and subject to
the conditions of this Warrant. Certain terms used in this Warrant are defined
in Section 4. The Corporation represents and warrants that the Warrant Shares,
if issued on the date of this Warrant, would represent 0.55% of the
Corporation's issued and outstanding shares of Common Stock. The Exercise Price
or the Exercise Price Per Share shall be $1.50, in all events subject to further
adjustment as provided herein.
As used herein, the term "Common Stock" shall mean (i) the class of stock
designated above or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value or from no par value to par
value. In the event the Corporation shall, after the date hereof, issue
securities of greater or superior voting rights than the shares of Common Stock
outstanding as of the date hereof, the Holder, at its option, may receive upon
exercise of any Warrant either Common Stock or a like number of such securities
with greater or superior voting rights.
Notwithstanding the provisions of this Warrant, in no event (except (i) as
specifically provided in the Warrant as an exception to this provision, (ii)
during the forty-five (45) day period prior to the expiration of the Exercise
Period, or (iii) while there is outstanding a tender offer for any or all of the
shares of the Corporation's Common Stock) shall the Holder be entitled to
exercise this Warrant, or the Corporation have the obligation to issue shares
upon such exercise of all or any portion of this Warrant to the extent that,
after such exercise the sum of (1) the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates (other than shares of Common
Stock which may be deemed beneficially owned through ownership of the
unexercised portion of the Warrants or other right to purchase Common Stock or
through the ownership of the unconverted portion of convertible securities), and
(2) the number of shares of Common Stock issuable upon the exercise of the
Warrants with respect to which the determination of the proviso is being made,
would result in beneficial ownership by the Holder and its Affiliates of more
than 4.99% of the outstanding shares of Common Stock (after taking into account
the shares to be issued to the Holder upon such exercise). For purposes of the
proviso to the immediately preceding sentence, beneficial ownership shall be
determined in accordance with Section 12(d) of the Securities Exchange Act of
1934, as amended except as otherwise provided in clause (1) of such sentence.
Section 1. Exercise Period.
This Warrant may be exercised in whole or in part by the Holder at any time
after the date hereof until 5:00 p.m. Eastern Time on December 21, 2012 (such
period being herein referred to as the "Exercise Period"). The Corporation
agrees to use reasonable efforts to mail to the original Holder by certified
mail, return receipt requested, notice of the expiration date of this Warrant,
no later than 15 days prior to such date, but failure to provide notice will not
extend the Exercise Period.
Section 2. Exercise of Warrant.
(a) The rights represented by this Warrant may be exercised, in whole or in
any part (but not as to a fractional share of Common Stock), by (i) the
surrender of this Warrant (properly endorsed) at the principal office of the
Corporation at Bloomfield Business Park, 000 Xxxxxxxxxx Xx. Xxxx 0, Xxxx Xxxxxx,
Xxx Xxxxxx 00000 (or at such other agency or office of the Corporation in the
United States of America as it may designate by notice in writing to the Holder
at the address of the Holder appearing on the books of the Corporation), (ii)
delivery to the Corporation of a notice of election to exercise in the form of
Exhibit A, and (iii) either (a) payment to the Corporation by cash, wire
transfer funds or check in an amount equal to the then applicable Exercise Price
Per Share multiplied by the number of Warrant Shares then being purchased, or,
(b) alternatively, in the event that a registration statement filed under the
Securities Act of 1933, as amended, covering the Common Stock issuable upon
exercise of this Warrant is not effective on or before June 30, 2008, and for so
long as any such registration statement remains not effective, the Holder may
exercise its right during the Exercise Period to receive Warrant Shares on a net
basis such that, without any payment of funds by the Holder, the Holder receives
that number of Warrant Shares otherwise issuable upon exercise of its Warrants
less the number of Warrant Shares having an aggregate Market Price at the time
of exercise equal to the aggregate Exercise Price Per Share that would otherwise
have been payable by the Holder of all such Warrant Shares.
(b) Each date on which this Warrant is surrendered and on which payment of
the Exercise Price is made in accordance with Section 2(a) above is referred to
as an "Exercise Date." Simultaneously with each exercise, the Corporation shall
issue and deliver a certificate or certificates for the Warrant Shares being
purchased pursuant to such exercise, registered in the name of the Holder or the
Holder's designee, to such Holder or designee, as the case may be. If such
exercise shall not have been for the full number of the Warrant Shares, then the
Corporation shall issue and deliver to the Holder a new Warrant, registered in
the name of the Holder, of like tenor to this Warrant, for the balance of the
Warrant Shares.
(c) The person in whose name any certificate for shares of Common Stock is
issued or issuable upon any exercise shall for all purposes be deemed to have
become the holder of record of such shares as of the Exercise Date. The
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Corporation shall pay all documentary, stamp or other transactional taxes
attributable to the issuance or delivery of shares of Common Stock upon exercise
of all or any part of this Warrant; provided, however, that the Corporation
shall not be required to pay taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any certificate for such shares
in a name other than that of the Holder to the extent such taxes would exceed
the taxes otherwise payable if such certificate had been issued to the Holder.
No fractional shares of Common Stock will be issued in connection with any
exercise hereunder, but in lieu of such fractional shares, the Corporation shall
make a cash payment therefor equal in amount to the product of the applicable
fraction multiplied by the current Market Price per share of Common Stock.
(d) This Warrant and the Warrant Shares are covered by and are entitled to
the benefits of that certain Registration Rights Agreement dated the date hereof
between the Corporation and the Holder.
Section 3. Antidilution Provisions. The number of shares of Common Stock
purchasable on exercise of this Warrant and payment of the Exercise Price shall
be subject to adjustment from time to time as provided in this Section 3:
(a) Issuance of Additional Common Stock. If the Corporation, at any time or
from time to time after the date of this Warrant, shall issue, sell, grant, or
shall fix a record date for the determination of holders of any class of
securities entitled to receive, shares of Common Stock, whether in a direct
issuance of Common Stock or through the exercise or conversion of any
convertible security, warrant, option, note or other instrument, at a price per
share that is less than the Exercise Price on the date the Corporation fixes the
offering price of such additional shares of Common Stock (a "Dilutive Issuance")
then the Exercise Price shall be reduced as of such date, to a price equal to
the lowest price per share received or to be received by the Corporation in such
Dilutive Issuance, and if no such price is specified, such price shall be deemed
to be $1.00.
(b) Treatment of Options and Convertible Securities. If the Corporation, at
any time or from time to time after the date of this Warrant, shall issue, sell,
grant or assume, or shall fix a record date for the determination of holders of
any class of securities entitled to receive, any Options (defined below) or
Convertible Securities (defined below), then, and in each such case, the maximum
number of shares of Common Stock (as set forth in the instrument relating
thereto, without regard to any provisions contained therein for a subsequent
adjustment of such number and whether or not the right to convert or exchange or
exercise is immediate or conditioned upon the passage of time, the occurrence or
non-occurrence of some event or otherwise) issuable upon the exercise of such
Options or, in the case of Convertible Securities and options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be
shares of Common Stock issued and consequently give rise to adjustment as, and
to the extent, provided in paragraph (a) as of the time of such issue, sale,
grant or assumption or, in case such a record date shall have been fixed, as of
the close of business on such record date; provided that, in each such case no
further adjustment to the Exercise Price shall be made upon the subsequent issue
or sale of shares of Common Stock upon the exercise of such Options or the
conversion or exchange of such Convertible Securities.
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(c) Change in Capital Stock. If the Corporation (i) pays a dividend or
makes a distribution on its Common Stock in shares of its Common Stock, (ii)
subdivides its outstanding shares of Common Stock into a greater number of
shares, (iii) combines its outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues by reclassification of its Common Stock any
shares of its capital stock, then in each case the Exercise Price in effect
immediately prior to such action shall be proportionately adjusted so that the
Holder of any Warrant exercised thereafter may receive the aggregate number and
kind of shares of capital stock of the Corporation which he would have owned
immediately following such action if such Warrant had been exercised immediately
prior to such action.
The adjustment as provided in this paragraph (c) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification. If after an adjustment, a Holder of a Warrant, upon its
exercise, may receive shares of two or more classes of capital stock of the
Corporation, the Corporation shall determine the allocation of the adjusted
Exercise Price between the classes of capital stock. After such allocation, the
exercise privilege and the exercise price of each such class of capital stock
shall thereafter be subject to adjustment on terms comparable to those
applicable to Common Stock in this Section 3.
(d) Dilution in Case of Other Securities. In case any Other Securities (as
defined in Section 4) shall be issued or sold or shall become subject to issue
or sale upon the conversion or exchange of any securities of the Corporation or
to subscription, purchase or other acquisition pursuant to any Options issued or
granted by the Corporation such as to dilute, on a basis to which the standards
established in the other provisions of this Section 3 are applicable, then, and
in each such case, the computations, adjustments and readjustments provided for
in this Section 3 shall be made as nearly as possible in the manner so provided
and applied to determine the amount of Other Securities from time to time
receivable upon the exercise of the Warrants, so as to protect the Holder
against the effect of such dilution.
(e) Other Changes in Common Stock. If the Corporation shall be a party to
any Significant Corporate Event (as defined in section 4) in which the
previously outstanding shares of Common Stock shall be changed into or exchanged
for different securities of the Corporation or common stock or other securities
of another corporation or interests in a noncorporate entity or other property
(including cash) or any combination of any of the foregoing, as a condition of
the consummation of such Significant Corporate Event, lawful and adequate
provisions shall be made so that (1) the Holder, upon the exercise hereof at any
time prior to the date such Significant Corporate Event is consummated (the
"Consummation Date"), shall be entitled to receive, and this Warrant shall
thereafter represent the right to receive, in lieu of the Warrant Shares
issuable upon such exercise prior to the Consummation Date, the amount of
securities or other property to which the Holder would actually have been
entitled as a holder of Common Stock upon the consummation of such a Significant
Corporate Event if the Holder had exercised this Warrant immediately prior
thereto (subject to adjustments from and after the Consummation Date as nearly
equivalent as possible to the adjustments provided for in this Section 3), or
(2) in the case of a Significant Corporate Event in which the Corporation is not
the survivor, if so elected by the Holder, the Holder shall be entitled to
receive on the Consummation Date in cancellation of this Warrant, the amount of
securities or other property to which the Holder would actually have been
entitled as a holder of Common Stock upon consummation of such Significant
Corporate Event if the Holder had exercised this Warrant immediately prior
thereto and had paid the Exercise Price therefor.
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Notwithstanding anything contained herein to the contrary, unless the
Holder makes an election under clause (2) above, the Corporation shall not
effect any Significant Corporate Event unless prior to the consummation thereof
each acquiring corporation or other person which may be required to deliver any
securities or other property upon the exercise of this Warrant shall assume, by
written instrument delivered to the Holder, the obligation to deliver to the
Holder such securities or other property to which, in accordance with the
foregoing provisions, the Holder may be entitled and an opinion of counsel
reasonably satisfactory, which opinion shall state that this Warrant, including,
without limitation, the exercise and anti-dilution provisions applicable to this
Warrant, if any, shall thereafter continue in full force and effect and shall be
enforceable against such acquiring corporation or other person in accordance
with the terms hereof.
(f) Other Dividends or Other Distributions. If the Corporation declares a
dividend or other distribution upon its capital stock, other than a dividend
payable in shares of Common Stock, then the Corporation shall pay over to the
Holder, on the dividend payment date, the cash, stock or Other Securities and
other property which the Holder would have received if the Holder had exercised
this Warrant in full and had been the record holder of the Warrant Shares
represented by this Warrant on the date on which a record is taken for the
purpose of such dividend, or, if a record is not taken, the date as of which the
holders of such capital stock of record entitled to such dividend are to be
determined, provided that, in the case of a dividend consisting of stock or
securities (other than shares of Common Stock, Options or Convertible
Securities) or other property (except cash), the Holder may, at its option,
elect that instead, lawful and adequate provisions shall be made (including
without limitation any necessary reduction in the Exercise Price) whereby the
Holder shall thereafter have the right to receive, upon exercise of this Warrant
on the terms and conditions specified in this Warrant and in addition to the
Warrant Shares issuable upon such exercise, such shares of stock, securities or
property; provided, further, however, that the Holder in each such instance
shall not have the right to receive any such dividend or distribution unless and
until it exercises the conversion of the Warrant.
(g) Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price, the number of Warrant Shares purchasable hereunder shall be adjusted to
the nearest whole share to the product obtained by multiplying the number of
Warrant Shares purchasable immediately prior to such adjustment in the Exercise
Price by a fraction, the numerator of which shall be the Exercise Price
immediately prior to such adjustment and the denominator of which shall be the
Exercise Price immediately thereafter.
(h) Notice of Adjustment. Whenever the Exercise Price or the number of
Warrant Shares for which this Warrant is exercisable shall be adjusted pursuant
to this Section 3, the Corporation shall deliver a certificate signed by its
chief financial officer to the Holder setting forth, in reasonable detail, the
event requiring the adjustment, the method by which adjustment was calculated
specifying the number of Warrant Shares for which this Warrant is now
exercisable, and any change in the Exercise Price.
(i) Notice of Certain Corporate Action. In case the Corporation shall
propose to (1) pay any dividend or make any other distribution to the holders of
its capital stock, (2) offer to the holders of its capital stock rights to
subscribe for or to purchase shares of Common Stock or shares of any other class
of securities, rights or options, (3) effect any reclassification of its capital
stock, (4) effect any reorganization, or (5) effect any Significant Corporate
Event, then, in each such case, the Corporation shall give to the Holder a
notice of such proposed action, which shall specify the date on which a record
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is to be taken for the purposes of such dividend, distribution rights or vote,
or the date on which such reclassification, reorganization, or Significant
Corporate Event is to take place and the date of participation therein by the
holders of capital stock, if any such date is to be fixed and shall also set
forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action on the capital stock, if any, and the number
and kind of any other shares of capital stock which will comprise the Warrant
Shares, and the Exercise Price, after giving effect to any adjustment, if any,
which will be required by this Section 3 as a result of such action. Such notice
shall be so given in the case of any action covered by clause (1) or (2) above
at least 20 days prior to the record date for determining holders of the capital
stock for purposes of such action, and in the case of any other such action, at
least 30 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of capital stock, whichever shall
be the earlier.
(j) Certain Events. If any event occurs as to which, in the good faith
judgment of the Board of Directors of the Corporation, the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of this Section 3, then the Board of Directors
of the Corporation in the good faith, reasonable exercise of its business
judgment may decrease the Exercise Price and/or increase the number of Warrant
Shares issuable upon exercise hereof, in accordance with such essential intent
and principles so as to protect such exercise rights as aforesaid.
(k) Purchase of Common Stock by Corporation. If the Corporation at any time
while this Warrant is outstanding, directly or indirectly, through an affiliate
or otherwise, purchases, redeems or acquires any shares of Common Stock at a
price per share in excess of the then current Market Price per share for Common
Stock then the Exercise Price shall be adjusted to that price determined by
multiplying such Exercise Price by a fraction, (i) the numerator of which is the
number of outstanding shares of Common Stock prior to such purchase, redemption
or other acquisition minus the number of shares of Common Stock which the
aggregate consideration for the total number of such shares of Common Stock so
purchased, redeemed or acquired would have purchased at the current Market Price
and (ii) the denominator of which is the number of outstanding shares of Common
Stock after giving effect to such purchase, redemption or acquisition.
(l) Computation of Consideration. For the purposes of this Section 3:
(1) the consideration for any shares of Common Stock or any Options or
Convertible Securities, irrespective of the accounting treatment of such
consideration,
(i) insofar as it consists of cash, shall be computed as the
amount of cash received by the Corporation, and insofar as it consists
of securities, the Market Price therefor or insofar as it consists of
other property, the Fair Market Value thereof, as of the date
immediately preceding such issue, sale, grant, or the record date
therefor, in each case without deducting any expenses paid or incurred
by the Corporation, any commissions or compensation paid or
concessions or discounts allowed to underwriters, dealers or others
performing similar services, and any accrued interest or dividends in
connection with such issue or sale, and
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(ii) in case shares of Common Stock or Options or Convertible
Securities are or are to be issued, sold or granted together with
other stock or securities or other assets of the Corporation for a
consideration which covers both, shall be the proportion of such
consideration so received, computed as provided in subdivision (i)
above, allocable to such shares of Common Stock or Options or
Convertible Securities, as the case may be, all as determined by the
Board of Directors of the Corporation in the good faith reasonable
exercise of its business judgment; and
(2) shares of Common Stock deemed to have been issued upon the issue,
sale, or grant of Options or Convertible Securities pursuant to Section
3(b), shall be deemed to have been issued for a consideration per share of
Common Stock determined by dividing
(i) the total amount, if any, received and receivable (or,
pursuant to this Section 3(l), deemed to have been received) by the
Corporation as consideration for the issue, sale, or grant of the
Options or Convertible Securities in question, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise in full of such Options
or the conversion or exchange of such Convertible Securities or, in
the case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of
such Convertible Securities, in each case comprising such
consideration as provided in the foregoing subdivision (1), by
(ii) the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of
such Convertible Securities.
Section 4. Certain Defined Terms.
"Affiliate" means any corporation, partnership, limited liability company,
joint venture, trust, unincorporated organization or other person which,
directly or indirectly, controls or is controlled by or is under common control
with the Holder.
"Convertible Securities" means any evidences of indebtedness, shares of
stock, or securities directly or indirectly convertible into or exchangeable by
their terms for shares of Common Stock.
"Excluded Transaction" means issuances of up to three million (3,000,000)
shares of Common Stock pursuant to options or other convertible securities
issued to employees, officers or directors, as approved by the Corporation's
Board of Directors, so long as such shares are subject to a lock-up agreement
generally applicable to all officers and directors of the Corporation.
"Fair Market Value" means, on any relevant date, as to any property, the
fair market value as reasonably determined by the Board of Directors of the
Corporation and reasonably acceptable to the Holder, but if the Holder has not
so accepted such determination of fair market value within 10 business days of
the date notice of such determination by the Board of Directors is delivered to
the Holder, then as determined by an independent investment banking firm
selected by the Holder at Holder's expense, and that has not acted as an
investment banker or otherwise engaged in a transaction with the Holder or an
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Affiliate of the Holder for at least one year before its selection, and
reasonably acceptable to the Corporation. If the Fair Market Value as determined
by such investment banking firm exceeds the Fair Market Value as determined by
the Board of Directors by 10% or more, the cost of the engagement of the
investment banking firm will be borne by the Corporation.
"Market Price" means, as to any security on any relevant date, the Fair
Market Value per share of such security, or if there shall be a public market
for such security, the average of the daily closing prices for the ten (10)
consecutive trading days before such date excluding any trades which are not
bona fide arm's length transactions. The closing price for each day shall be (a)
if such security is listed or admitted for trading on any national securities
exchange, the last sale price of such security, regular way, or the mean of the
closing bid and asked prices thereof if no such sale occurred, in each case as
officially reported on the principal securities exchange on which such security
are listed, or (b) if quoted on NASDAQ or any similar system of automated
dissemination of quotations of securities prices then in common use the mean
between the closing high bid and low asked quotations of such security in the
over-the-counter market as shown by NASDAQ or such similar system of automated
dissemination of quotations of securities prices, as reported by any member firm
of the New York Stock Exchange selected by the Corporation, (c) if not quoted as
described in clause (b), the mean between the high bid and low asked quotations
for the Warrant Shares as reported by NASDAQ or any similar successor
organization, as reported by any member firm of the New York Stock Exchange
selected by the Corporation. If such security is quoted on a national securities
or central market system in lieu of a market or quotation system described
above, the closing price shall be determined in the manner set forth in clause
(a) of the preceding sentence if bid and asked quotations are reported but
actual transactions are not, and in the manner set forth in clause (b) of the
preceding sentence if actual transactions are reported.
"Options" means rights, options or warrants to subscribe for, purchase or
otherwise acquire either Common Stock or Convertible Securities.
"Other Securities" means any capital stock (other than Common Stock) and
any other securities of the Corporation or any other person (corporate or
otherwise) which the Holder at any time shall be entitled to receive, or shall
have received, upon the exercise or partial exercise of this Warrant, in lieu of
or in addition to shares of Common Stock, or which at any time shall be issuable
or shall have been issued in exchange for or in replacement of shares of Common
Stock or Other Securities pursuant to Section 3 or otherwise.
"Significant Corporate Event" means any sale, transfer or lease of all or
substantially all of the Corporation's assets, a merger or consolidation
involving the Corporation, the repurchase by the Corporation of more than 10% of
the Corporation's capital stock, liquidation or dissolution of the Corporation.
Section 5. Representations, Warranties and Covenants as to Stock. The
Corporation represents and warrants to the Holder that (i) all shares of Common
Stock which may be issued upon the exercise of this Warrant will, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and free from all taxes,
liens and charges with respect to the issuance thereof (ii) the Corporation is
duly organized, validly existing and in good standing under the laws of the
State of Nevada, has all requisite power to carry on its business as presently
being conducted, and is qualified to do business and is in good standing in
every jurisdiction in which the failure so to qualify or to be in good standing
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could have a material adverse effect on the Corporation, (iii) the Corporation
has all requisite power and authority to execute and deliver this Warrant and to
perform its obligations hereunder, (iv) this Warrant has been duly authorized by
all necessary corporate action on the part of the Corporation, has been duly
executed and delivered by the Corporation and constitutes the valid and legally
binding obligation of the Corporation enforceable in accordance with its terms,
(v) the execution, delivery and performance of this Warrant by the Corporation
have not violated and shall not violate any law, rule or regulation to which the
Corporation is subject, the Articles of Incorporation or by-laws of the
Corporation or any material agreement to which the Corporation is a party or by
which it is bound, (vi) the authorized capital stock of the Corporation consists
of 2,000,000,000 shares of common stock and 50,00,000 shares of preferred stock,
and (vii) except as otherwise set forth in the securities purchase agreement of
even date herewith, there are no outstanding warrants, options, agreements,
convertible securities or other commitments pursuant to which the Corporation is
or may become obligated to issue or sell any shares of its capital stock or
other securities, and no preemptive rights or similar rights to purchase or
otherwise acquire shares of the capital stock or other securities of the
Corporation exist. The Corporation covenants to the Holder that it will (a) from
time to time take all such action as may be required to assure that the stated
or par value per share of the Common Stock is at all times no greater than the
then effective Exercise Price and (b) not amend or modify any provision of its
Articles of Incorporation or by-laws in any manner that would adversely affect
in any way the powers, preferences or relative participating, optional or other
special rights of the Common Stock or the rights of the Holder of any Warrants.
The Corporation further covenants and agrees that the Corporation will take all
such action as may be required to assure that the Corporation shall at all times
have authorized and reserved, free from preemptive rights, a sufficient number
of shares of its Common Stock to provide for the exercise of this Warrant in
full. If any shares of Common Stock reserved for the purpose of issuance upon
the exercise of this Warrant require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon exercise, then the Corporation shall at its
expense in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
(a) Purchase Rights. If at any time the Corporation grants, issues or sells
any Options, Convertible Securities, Other Securities or any shares of any
capital stock, or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of Common Stock (the "Purchase Rights"),
then the Holder shall be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights, or, if
no such record is taken, the date as of which the person or the record holders
of Common Stock are to be determined for the grant, issue or sale of such
Purchase Rights; provided, further, however, that the Holder in each such
instance shall not have the right to receive any such dividend or distribution
unless and until it exercises the conversion of the Warrant. For the avoidance
of doubt, the foregoing is intended to include, without limitation, a preemption
right in favor of the Holder with respect to any issuance of equity securities
by the Corporation by which the Holder will have the right, but not the
obligation, to maintain its respective proportionate share of ownership interest
in the Corporation through the purchase of additional shares in the new issuance
on the terms and conditions in such issuance. The terms of this Section 6 shall
expire at the end of the Exercise Period.
Section 6. No Shareholder Rights. This Warrant shall not entitle the Holder
to any voting rights or other rights as a shareholder of the Corporation.
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Section 7. Restrictions on Transfer. Subject to applicable Federal, state
and foreign securities laws this Warrant, the Warrant Shares and all rights
hereunder are transferable to any Affiliate of the Holder, in whole or in part,
and from time to time, upon (i) surrender of this Warrant properly endorsed, and
(ii) delivery of a notice of transfer in the form of Exhibit B by the Holder or
its duly authorized attorney at the office of the Corporation, the Corporation
will at its expense issue to or upon the order of the Holder a new Warrant or
Warrants of like tenor in the name of such Holder or as such Holder may direct.
The Corporation, may reasonably request an opinion of counsel in connection with
any such request. Each transferee and holder of this Warrant, by accepting or
holding the same, consents that this Warrant, when endorsed, in blank, shall be
deemed negotiable, and, when so endorsed, the holder hereof shall be treated by
the Corporation and all other persons dealing with this Warrant as the absolute
owner hereof for any purposes and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books of the
Corporation, any notice to the contrary notwithstanding; provided, however, that
until each such transfer is recorded on such books, the Corporation may treat
the registered holder hereof as the owner hereof for all purposes. Until such
time as it is no longer required under the Act, the certificates representing
the Warrant Shares shall bear the following legend:
"The shares of Stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act"), and may not be sold or transferred in the absence
of an effective registration statement under the Act or an
opinion of counsel in form satisfactory to the Corporation
that such registration is not required under the Act."
Section 8. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is
lost, stolen, mutilated or destroyed, the Corporation shall at its expense (upon
delivery of an indemnity agreement reasonably satisfactory in the Corporation
and, in the case of a mutilated Warrant, surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Corporation, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
Section 9. Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by recognized overnight courier, prepaid, addressed as
follows:
If to the Corporation, to: Global Resource Corporation
Bloomfield Business Park
000 Xxxxxxxxxx Xx. Xxxx 0,
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, CEO
Facsimile Number:
If to the Holder, at: Professional Offshore Opportunity
Fund Ltd.
c/o Professional Traders Management, LLC
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
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or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
Section 10. Remedies. The Corporation stipulates that the remedies at law
of the Holder of this Warrant in the event of a default or threatened default by
the Corporation 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.
Section 11. 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 Corporation, 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 holders.
Section 12. 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.
(a) Governing Law; Jurisdiction; Venue; Waiver of Jury Trial. The
construction, validity, interpretation and enforcement of this Warrant shall be
governed by the laws of the State of New York (without giving effect to any laws
or rules relating to conflicts of laws that would cause the application of the
laws of any jurisdiction other than the State of New York). No other state's law
shall apply to any claim relating to or arising from this Agreement or any
transaction relating to this Agreement. THE COMPANY AND THE INVESTOR CONSENT
THAT ANY LEGAL ACTION OR PROCEEDING AGAINST EITHER OF THEM UNDER, ARISING OUT OF
OR IN ANY MANNER RELATING TO THIS AGREEMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT
EXECUTED AND DELIVERED IN CONNECTION HEREWITH SHALL BE BROUGHT EXCLUSIVELY IN
ANY COURT OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE, IN THE COUNTY OF NEW YORK. THE
COMPANY AND THE INVESTOR, BY THE EXECUTION AND DELIVERY OF THIS AGREMENT,
EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF
ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDINGS. THE COMPANY AND THE
INVESTOR AGREE THAT PERSONAL JURISDICTION OVER EITHER OF THEM MAY BE OBTAINED BY
THE DELIVERY OF A SUMMONS (POSTAGE PREPAID) IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THIS AGREEMENT. ASSUMING DELIVERY OF THE SUMMONS IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 14 OF THIS AGREEMENT, THE COMPANY AND THE
INVESTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVE ANY ALLEGED LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. THE HOLDER AND THE COMPANY
INTENTIONALLY AND KNOWINGLY WAIVE AND RELINQUISH ANY AND ALL RIGHT TO TRIAL BY
JURY IN CONNECTION WITH ANY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHER
CLAIM HOWSOEVER ASSERTED OR DENOMINATED THAT RELATE TO, ARISE OUT OF, IN
CONNNECTION WITH OR UNDER THIS WARRANT.
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Section 13. Headings. The headings of the various sections contained in
this Warrant have been inserted for convenience of reference only and should not
be deemed to be a part of this Warrant.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officer as of the date first written above.
GLOBAL RESOURCE CORPORATION
By:____________________________
Name:
Title:
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EXHIBIT A
---------
FORM OF NOTICE OF ELECTION TO EXERCISE
[To be executed only upon exercise
of the Warrant to which this form is attached]
To GLOBAL RESOURCE CORPORATION
The undersigned, the holder of the Warrant to which this form is attached,
hereby irrevocably elects to exercise the right represented by such Warrant to
purchase __________ shares of Common Stock of GLOBAL RESOURCE CORPORATION, and
herewith either [circle (a) or (b)]: (a) tenders the aggregate payment of
$_________ in the form of cash, wire transfer funds, check or (b) elects to
exercise its right to acquire the Common Stock without any payment of funds as
provided in Section 2 of the Warrant. The undersigned requests that a
certificate for such shares be issued in the name of _________________________,
whose address is __________________, and that such certificate be delivered to
______________________, whose address is _____________________________________.
If such number of shares is less than all of the shares purchasable under
the Warrant, the undersigned requests that a new Warrant, of like tenor as the
Warrant to which this form is attached, representing the right to purchase the
remaining balance of the shares purchasable under such current Warrant be
registered in the name of __________________, whose address is
_____________________________________, and that such new Warrant be delivered to
__________________, whose address is __________________________________________.
Signature: ______________________________________________
(Signature must conform in all respects to the
name of the holder of the Warrant as specified
on the face of the Warrant)
Date: ________________
Signed in the presence of:
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EXHIBIT B
---------
FORM OF NOTICE OF TRANSFER
[To be executed only upon transfer
of the Warrant to which this form is attached]
For value received, the undersigned hereby sells, assigns and transfers
unto ____________________________ all of the rights represented by the Warrant
to which this form is attached to purchase _________________________ shares of
Common Stock of GLOBAL RESOURCE CORPORATION (the "Corporation"), to which such
Warrant relates, and appoints _________________________ as its attorney to
transfer such right on the books of the Corporation, with full power of
substitution in the premises.
Signature: ______________________________________________
(Signature must conform in all respects to the
name of the holder of the Warrant as specified
on the face of the Warrant)
Address: ________________________________________________
Date: ______________
Signed in the presence of:
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