THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR WITH ANY STATE SECURITIES LAW COMMISSION. THIS WARRANT AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE LAWS AND RULES, OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO TECHEDGE, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase 200,000 shares of Common Stock of
Techedge, Inc. (subject to adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
No. 2005-A-001 Issue Date: July 5, 2005
TECHEDGE, INC., a corporation organized under the laws of the State of
Delaware (the "Company"), hereby certifies that, for value received, Whalehaven
Capital Fund Limited, 3rd Floor, 00 Xxx-Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx XX00,
telecopier number: (000) 000-0000, or its assigns (the "Holder"), is entitled,
subject to the terms set forth below, to purchase from the Company at any time
after the Issue Date until 5:00 p.m., E.D.T on the fifth (5th) anniversary of
the Issue Date (the "Expiration Date"), up to 200,000 fully paid and
nonassessable shares of Common Stock at a per share purchase price of $0.75. The
aforedescribed purchase price per share, as adjusted from time to time as herein
provided, is referred to herein as the "Purchase Price." The number and
character of such shares of Common Stock and the Purchase Price are subject to
adjustment as provided herein. The Company may reduce the Purchase Price without
the consent of the Holder. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in that certain
Subscription Agreement, dated April 29, 2005, and amended as of May 4, 2005, and
May 27, 2005 (as amended, the "Subscription Agreement"), dated April 29, 2005,
entered into by the Company and the Holders of the Warrants.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall mean Techedge, Inc., a Delaware corporation
and any corporation which shall succeed or assume the obligations of Techedge,
Inc. hereunder.
(b) The term "Common Stock" means (a) the Company's Common Stock, $.0001
par value per share, as authorized on the date of the Subscription Agreement,
and (b) any other securities into which or for which any of the securities
described in (a) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the holder of this Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of this Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 or otherwise.
(d) The term "SEC" means the United States Securities and Exchange
Commission.
(e) The term "Warrants" means this Warrant and the other warrants to
purchase shares of Common Stock issued pursuant to the Subscription Agreement
and all warrants issued in exchange, transfer or replacement thereof.
-1-
1. Exercise of Warrant.
1.1. Number of Shares Issuable upon Exercise. From and after the Issue
Date through and including the Expiration Date, the Holder hereof shall be
entitled to receive, upon exercise of this Warrant in whole in accordance with
the terms of subsection 1.2 or upon exercise of this Warrant in part in
accordance with subsection 1.3, shares of Common Stock of the Company, subject
to adjustment pursuant to Section 4.
1.2. Full Exercise. Subject to compliance with the terms and conditions of
this Warrant and applicable securities laws, this Warrant may be exercised in
full by the Holder hereof by delivery of an original or facsimile copy of (a)
the form of subscription attached as Exhibit A hereto (the "Subscription Form")
duly executed by such Xxxxxx and (b) surrender of the original Warrant within
four (4) days thereafter, to the Company at its principal office or at the
office of its Warrant Agent (as provided hereinafter), accompanied by payment,
in cash, wire transfer or by certified or official bank check payable to the
order of the Company, in the amount obtained by multiplying the number of shares
of Common Stock for which this Warrant is then exercisable by the Purchase Price
then in effect.
1.3. Partial Exercise. Subject to compliance with the terms and conditions
of this Warrant and applicable securities laws, this Warrant may be exercised in
part (but not for a fractional share) by surrender of this Warrant in the manner
and at the place provided in subsection 1.2 except that the amount payable by
the Holder on such partial exercise shall be the amount obtained by multiplying
(a) the number of whole shares of Common Stock designated by the Holder in the
Subscription Form by (b) the Purchase Price then in effect. On any such partial
exercise, the Company, at its expense, will forthwith issue and deliver to or
upon the order of the Holder hereof a new Warrant of like tenor, in the name of
the Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may request in compliance with applicable securities
laws, the whole number of shares of Common Stock for which such Warrant may
still be exercised.
1.4. Fair Market Value. Fair Market Value of a share of Common Stock as of
a particular date (the "Determination Date") shall mean:
(a) If the Company's Common Stock is traded on an exchange or is quoted on
the National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ"), National Market System, the NASDAQ SmallCap Market or the American
Stock Exchange, LLC, then the average of the closing prices of the Common Stock
of the Company on such exchange or market over the 20 business days immediately
preceding the Determination Date;
(b) If the Company's Common Stock is not traded on an exchange or on the
NASDAQ National Market System, the NASDAQ SmallCap Market or the American Stock
Exchange, Inc., but is traded in the over-the-counter market, then the average
of the closing bid prices reported for the 30-day period immediately preceding
the Determination Date;
(c) Except as provided in clause (d) below, if the Company's Common Stock
is not publicly traded, then as the Holder and the Company agree, or in the
absence of such an agreement, by arbitration in accordance with the rules then
standing of the American Arbitration Association, before a single arbitrator to
be chosen from a panel of persons qualified by education and training to pass on
the matter to be decided; or
(d) If the Determination Date is the date of a liquidation, dissolution or
winding up, or any event deemed to be a liquidation, dissolution or winding up
pursuant to the Company's charter, then all amounts to be payable per share to
holders of the Common Stock pursuant to the charter in the event of such
liquidation, dissolution or winding up, plus all other amounts to be payable per
share in respect of the Common Stock in liquidation under the charter, assuming
for the purposes of this clause (d) that all of the shares of Common Stock then
issuable upon exercise of all of the Warrants are outstanding at the
Determination Date.
-2-
1.5. [RESERVED].
1.6. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the Holder of this Warrant
pursuant to Subsection 3.2, such bank or trust company shall have all the powers
and duties of a warrant agent (as hereinafter described) and shall accept, in
its own name for the account of the Company or such successor person as may be
entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 1.
1.7 Delivery of Stock Certificates, etc. on Exercise. The Company agrees
that the shares of Common Stock purchased upon exercise of this Warrant shall be
deemed to be issued to the Holder hereof as the record owner of such shares as
of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within four (4) business days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, a certificate or certificates for
the number of duly and validly issued, fully paid and nonassessable shares of
Common Stock (or Other Securities) to which such Holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then Fair
Market Value of one full share of Common Stock, together with any other stock or
other securities and property (including cash, where applicable) to which such
Holder is entitled upon such exercise pursuant to Section 1 or otherwise.
2. Cashless Exercise.
(a) If a Registration Statement (as defined in the Subscription Agreement)
covering the re-sale of the shares of Common Stock issuable upon exercise hereof
has been declared effective by the SEC, then payment upon exercise of this
Warrant (whether in whole or in part) may be made for cash only as set forth in
Section 1 above. If no such Registration Statement is available during the time
that such Registration Statement is required to be effective pursuant to the
terms of the Subscription Agreement, then payment upon exercise of this Warrant
may be made at the option of the Holder either (i) in cash, wire transfer or by
certified or official bank check payable to the order of the Company equal to
the applicable aggregate Purchase Price, (ii) by delivery of Common Stock
issuable upon exercise of this Warrant in accordance with Section (b) below or
(iii) by a combination of any of the foregoing methods, for the number of shares
of Common Stock specified in such form (as such exercise number shall be
adjusted to reflect any adjustment in the total number of shares of Common Stock
issuable to the holder per the terms of this Warrant) and the holder shall
thereupon be entitled to receive the number of duly authorized, validly issued,
fully-paid and non-assessable shares of Common Stock (or Other Securities)
determined as provided herein.
(b) If the Fair Market Value of one share of Common Stock is greater than
the Purchase Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof being
cancelled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Subscription Form in which event the Company
shall issue to the holder a number of shares of Common Stock computed using the
following formula:
X=Y (A-B)
-------
A
Where X= the net number of shares of Common Stock to be
issued to the Holder
-3-
Y= the number of shares of Common Stock
purchasable under this Warrant or, if only a
portion of this Warrant is being exercised,
the portion of this Warrant being exercised
(at the date of such calculation)
A= the Fair Market Value of one share of the
Company's Common Stock (at the date of such
calculation)
B= Purchase Price (as adjusted to the date of such
calculation)
(c) The Holder may employ the cashless exercise feature described in
Section (b) above only during the pendency of a Non-Registration Event as
described in Section 11 of the Subscription Agreement.
For purposes of Rule 144 promulgated under the 1933 Act and to the extent
permitted thereby, it is intended, understood and acknowledged that the Warrant
Shares issued in a cashless exercise transaction shall be deemed to have been
acquired by the Holder, and the holding period for the Warrant Shares shall be
deemed to have commenced, on the date this Warrant was originally issued
pursuant to the Subscription Agreement.
3. Adjustment for Reorganization, Consolidation, Merger, etc.
3.1. Reorganization, Consolidation, Merger, etc. In case at any time or
from time to time, the Company shall (a) effect a reorganization, (b)
consolidate with or merge into any other person or (c) transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, as a condition to the consummation of any such transaction as a result of
which holders of Common Stock shall be entitled to receive stock, other
securities or property (including cash) with respect to or in exchange for such
Common Stock, proper and adequate provision shall be made by the Company or the
successor or purchasing entity, as applicable, whereby the Holder of this
Warrant, on the exercise hereof as provided in Section 1, at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if such
Holder had so exercised this Warrant, immediately prior thereto, all subject to
further adjustment thereafter as provided in Section 4.
3.2. Dissolution. In the event of any dissolution of the Company following
the transfer of all or substantially all of its properties or assets and subject
to section 3.3, the Company, prior to such dissolution, shall at its expense
deliver or cause to be delivered the stock and other securities and property
(including cash, where applicable) receivable by the Holder of the Warrants upon
the exercise thereof after the effective date of such dissolution pursuant to
this Section 3 to a bank or trust company (a "Trustee") having its principal
office in New York, NY, as trustee for the Holder of the Warrants, to be
delivered to the Holder in the event that the Holder subsequently exercises this
Warrant.
3.3. Continuation of Terms. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any transfer) referred to in Section
3.1, this Warrant shall continue in full force and effect and the terms hereof
shall be applicable to the Other Securities and property receivable on the
exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any Other
Securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 3.1. In the event this Warrant does not continue in full
force and effect after the consummation of the transaction described in Section
3.1, then only in such event will the Company's securities and property
(including cash, where applicable) receivable by the Holder of the Warrants be
delivered to the Trustee as contemplated by Section 3.2.
-4-
3.4 Share Issuance. Until the Expiration Date, if the Company shall issue
any Common Stock except for the Excepted Issuances (as defined in the
Subscription Agreement), prior to the complete exercise of this Warrant for a
consideration per share less than the Purchase Price that would be in effect at
the time of such issuance, then, and thereafter successively upon each such
issuance, the Purchase Price shall be reduced to such other lower issuance
price. For purposes of this adjustment, the issuance of any security or debt
instrument of the Company carrying the right to convert such security or debt
instrument into Common Stock or of any warrant, right or option to purchase
Common Stock shall result in an adjustment to the Purchase Price upon the
issuance of the above-described security, debt instrument, warrant, right, or
option and again at any time upon any subsequent issuances of shares of Common
Stock upon exercise of such conversion or purchase rights if such issuance is at
a price lower than the Purchase Price in effect upon such issuance. The
reduction of the Purchase Price described in this Section 3.4 is in addition to
the other rights of the Holder described in the Subscription Agreement.
4. Extraordinary Events Regarding Common Stock. In the event that the
Company shall (a) issue additional shares of the Common Stock as a dividend or
other distribution on outstanding Common Stock, (b) subdivide its outstanding
shares of Common Stock, or (c) combine its outstanding shares of the Common
Stock into a smaller number of shares of the Common Stock, then, in each such
event, the Purchase Price in effect immediately prior to such issuance,
subdivision or combination shall, simultaneously with the happening of such
event, be adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 4.
The number of shares of Common Stock that the Holder of this Warrant shall
thereafter, on the exercise hereof as provided in Section 1, be entitled to
receive shall be adjusted to a number determined by multiplying the number of
shares of Common Stock that would otherwise (but for the provisions of this
Section 4) be issuable on such exercise by a fraction of which (a) the numerator
is the Purchase Price that would otherwise (but for the provisions of this
Section 4) be in effect, and (b) the denominator is the Purchase Price in effect
on the date of such exercise. In each of the foregoing cases, the adjustment
shall be effective at the close of business on the date of such issuance,
subdivision or combination, as the case may be.
5. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable on the
exercise of the Warrants, the Company, at its expense, will cause its Chief
Financial Officer or other appropriate designee to compute such adjustment or
readjustment in accordance with the terms of the Warrant and prepare a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based, including a
statement of (a) the consideration received or receivable by the Company for any
additional shares of Common Stock (or Other Securities) issued or sold or deemed
to have been issued or sold, (b) the number of shares of Common Stock (or Other
Securities) outstanding or deemed to be outstanding, and (c) the Purchase Price
and the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment and as
adjusted or readjusted as provided in this Warrant. The Company will forthwith
mail a copy of each such certificate to the Holder of the Warrant and any
Warrant Agent of the Company (appointed pursuant to Section 11 hereof).
-5-
6. Reservation of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements. The Company will at all times reserve and keep available from its
authorized but unissued common stock, solely for issuance and delivery on the
exercise of the Warrants, all shares of Common Stock (or Other Securities) from
time to time issuable on the exercise of the Warrant. This Warrant, by itself,
as distinguished from any shares of Common Stock purchased hereunder, shall not
entitle the Holder to any of the rights of a shareholder of the Company..
7. Assignment; Exchange of Warrant. Subject to compliance with the
Subscription Agreement, applicable securities laws and the provisions of this
Section 7, this Warrant, and the rights evidenced hereby, may be transferred by
any registered holder hereof (a "Transferor"). On the surrender for exchange of
this Warrant, with the Transferor's endorsement in the form of Exhibit B
attached hereto (the "Transferor Endorsement Form") and together with a written
opinion of counsel reasonably satisfactory to the Company that the transfer of
this Warrant will be in compliance with applicable securities laws, the Company
at its expense, twice, only, but with payment by the Transferor of any
applicable transfer taxes, will issue and deliver to or on the order of the
Transferor thereof a new Warrant or Warrants of like tenor, in the name of the
Transferor and/or the transferee(s) specified in such Transferor Endorsement
Form (each a "Transferee"), calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or faces
of the Warrant so surrendered by the Transferor. No such transfers shall result
in a public distribution of the Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense, twice only, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Registration Rights. The Holder of this Warrant has been granted
certain registration rights by the Company. These registration rights are set
forth in the Subscription Agreement. The terms of the Subscription Agreement are
incorporated herein by this reference. Upon the occurrence of a Non-Registration
Event, or in the event the Company is unable to issue Common Stock upon exercise
of this Warrant that has been registered for re-sale in a Registration Statement
described in Section 11 of the Subscription Agreement, within the time periods
described in the Subscription Agreement, which Registration Statement must be
effective for the periods set forth in the Subscription Agreement, then upon
written demand made by the Holder, the Company will pay to the Holder of this
Warrant, in lieu of delivering Common Stock, an amount equal to (x) the Fair
Market Value of the Common Stock on the trading date immediately preceding the
date notice is given by the Holder less (y) the Purchase Price, for each share
of Common Stock designated in such notice from the Holder.
10. Maximum Exercise.
10.1 Section 13 Blocker. The Holder shall not be entitled to exercise this
Warrant on a given exercise date, in connection with that number of shares of
Common Stock which would be in excess of the sum of (i) the number of shares of
Common Stock beneficially owned by the Holder and its affiliates on such
exercise date, and (ii) the number of shares of Common Stock issuable upon the
exercise of this Warrant with respect to which the determination of this
limitation is being made on such exercise date, which would result in beneficial
ownership by the Holder and its affiliates of more than 4.99% of the then issued
and outstanding shares of Common Stock on such date. For the purposes of the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the Holder
shall not be limited to aggregate exercises which would result in the issuance
of more than 4.99%. The restriction described in this paragraph may be waived in
whole or in part, upon sixty-one (61) days prior notice from the Holder to the
Company. The Holder may allocate which of the equity of the Company deemed
beneficially owned by it shall be included in the 4.99% amount described above
and which shall be allocated to the excess above 4.99% provided such allocations
are consistent with applicable law.
-6-
10.2 Compliance. The Company shall have no obligation to verify compliance
of Section 10.1, other than to issue shares of Common Stock (or Other
Securities) in accordance with the exercise notice of each Holder. It shall be
the responsibility of each Holder to determine such Holder's compliance with
Section 10.1, and each delivery of a notice of exercise by a Holder will
constitute a representation by such Holder that it has evaluated the limitations
set forth in Section 10.1 and determined, based on the most recent public
filings by the Company with the SEC, that the issuance of the full number of
shares of Common Stock requested in such notice of exercise is permitted under
Section 10.1 hereof.
11. Warrant Agent. The Company may, by written notice to the Holder of the
Warrant, appoint an agent (a "Warrant Agent") for the purpose of issuing Common
Stock (or Other Securities) on the exercise of this Warrant pursuant to Section
1, exchanging this Warrant pursuant to Section 7, and replacing this Warrant
pursuant to Section 8, 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 Warrant Agent.
12. Transfer on the Company's Books. Until this Warrant is transferred on
the books of the Company, the Company may treat the registered holder hereof as
the absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
13. Compliance With Securities Laws. By acceptance of this Warrant, the
Holder hereby represents, warrants and covenants that any shares of Common Stock
purchased upon exercise of this Warrant or acquired upon conversion thereof
shall be acquired not with a view to, or for sale in connection with, any
distribution thereof; that the Holder has had such opportunity as such Holder
has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Holder to evaluate the merits and
risks of its investment in the company; that the Holder is able to bear the
economic risk of holding such shares as may be acquired pursuant to the exercise
of this Warrant for an indefinite period; that the Holder understands that,
subject to Section 9 above, the shares of Common Stock acquired pursuant to the
exercise of this Warrant may not be registered under the Securities Act and will
be "restricted securities" within the meaning of Rule 144 under the Securities
Act and that the exemption from registration under Rule 144 will not be
available for at least one year from the date of exercise of this Warrant,
subject to any special treatment by the SEC for exercise of this Warrant
pursuant to Section 2, and even then will not be available unless a public
market then exists for the Common Stock, adequate information concerning the
Company is then available to the public, and other terms and conditions of Rule
144 are complied with; and that all stock certificates representing shares of
Common Stock issued to the Holder upon exercise of this Warrant may have affixed
thereto a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR WITH ANY STATE SECURITIES COMMISSION,
AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED BY THE HOLDER IN THE ABSENCE OF A REGISTRATION STATEMENT THAT
IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE LAWS
AND RULES, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO TECHEDGE,
INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
In addition, the Holder agrees that the Company may place stop transfer orders
with its transfer agents with respect to such certificates. Notwithstanding the
foregoing, it is agreed that, as long as (A) the resale or transfer (including
without limitation a pledge) of shares of Common Stock issuable upon exercise of
the Warrant is registered pursuant to an effective registration statement and
the Holder represents in writing to the Company that such shares have been or
are being sold pursuant to such registration statement, (B) such shares have
been publicly sold pursuant to Rule 144 ("Rule 144") and the Holder has
delivered to the Company customary Rule 144 broker's and seller's representation
letters, or (C) such shares can be publicly sold pursuant to Rule 144(k) under
the Securities Act, such shares, as the case may be, shall be issued without any
legend or other restrictive language and, with respect to shares upon which such
legend is stamped, the Company shall issue new certificates without such legend
to the holder promptly upon request.
-7-
14. Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii)
delivered by reputable air courier service with charges prepaid, or (iii)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, 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: (i) if to the Company to: Techedge, Inc., 00 Xxxx
Xxxxxx Xxxxx, #0X, Xxxxxx, XX 00000, Attn: Xxxxx Xxxx, CEO, telecopier number:
(000) 000-0000, with a copy by telecopier only to: Xxxxxx Xxxxxxx, Esq.,
Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
telecopier number: (000)-000-0000, and (ii) if to the Holder, to the address and
telecopier number listed on the first paragraph of this Warrant, with an
additional copy by telecopier only to: Grushko & Xxxxxxx, P.C., 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, telecopier number: (000) 000-0000.
15. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of State of New York without giving effect to any conflict
of laws principles to the contrary. Any dispute relating to this Warrant shall
be adjudicated in New York County in the State of New York. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
-8-
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date
first written above.
TECHEDGE, INC.
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: President & CEO
-9-
EXHIBIT A
---------
NOTICE OF EXERCISE
------------------
(To be executed upon exercise of Warrant)
TECHEDGE, INC. WARRANT NO. ___
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
the securities of Techedge, Inc., as provided for therein, and (check the
applicable box):
|_| Tenders herewith payment of the exercise price in full in the form of
cash or a certified or official bank check in same-day funds in the amount of
$____________ for _________ shares of such securities.
|_| Elects the Net Issue Exercise option pursuant to Section 2 of the
Warrant, and accordingly requests delivery of a net of ______________ shares of
such securities, according to the following calculation:
X = Y (A-B) ( ) = (____) [(_____) - (_____)]
------- ---------------------------
A (_____)
Where X = the number of shares of Common Stock to be issued to
Holder.
Y = the number of shares of Common Stock purchasable
under the amount of the Warrant being exchanged (as
adjusted to the date of such calculation).
A = the Fair Market Value of one share of the Company's
Common Stock.
B = Purchase Price in effect under this Warrant on the
date the net issue election is made pursuant to
Section 2.
Please issue a certificate or certificates for such securities in the name of,
and pay any cash for any fractional share to (please print name, address and
taxpayer identification number):
Name:
---------------------------------------------------------
Address:
------------------------------------------------------
Taxpayer Identification Number:
-------------------------------
Signature:
----------------------------------------------------
Note: The above signature should correspond exactly with the name on the first
page of this Warrant Certificate or with the name of the assignee appearing in
the assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher whole number of shares.
Number of Shares of Common Stock Beneficially Owned on the date of exercise:
Less than five percent (5%) of the outstanding Common Stock of Techedge, Inc..
The undersigned confirms the continuing validity of, and reaffirms as of the
date hereof, the representations and warranties set forth in Section 4 of the
Subscription Agreement, dated as of April 29, 2005, and amended as of May 4,
2005, and May 27, 2005, by and among the Company and the Buyers named therein.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant shall
be made pursuant to registration of the Common Stock under the Securities Act of
1933, as amended (the "Securities Act"), or pursuant to an exemption from
registration under the Securities Act.
-10-
EXHIBIT B
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ASSIGNMENT
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(To be executed only upon assignment of Warrant Certificate) WARRANT NO. ___
For value received, the undersigned hereby sells, assigns and transfers unto
________________ the within Warrant Certificate, together with all right, title
and interest therein, and does hereby authorize Techedge, Inc.. to transfer said
Warrant Certificate on its books with respect to the number of shares set forth
below, with full power of substitution in the premises:
------------------------------ -------------------------- ---------------------
Name(s) of Assignee(s) Address # of Shares
------------------------------ -------------------------- ---------------------
------------------------------ -------------------------- ---------------------
------------------------------ -------------------------- ---------------------
------------------------------ -------------------------- ---------------------
------------------------------ -------------------------- ---------------------
------------------------------ -------------------------- ---------------------
If said number of shares shall not be all the shares represented by the Warrant
Certificate, a new Warrant Certificate is to be issued in the name of said
undersigned for the balance remaining of the shares covered by said Warrant
Certificate.
Dated:
-------------------------------------------------------
Signature:
---------------------------------------------------
Notice: The signature to the foregoing Assignment must correspond to the name as
written upon the face of this security in every particular, without alteration
or any change whatsoever; signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program) pursuant to Securities and Exchange Commission Rule 17Ad-15.
