Warrant No. [#] Dated: September ___, 2005
EXHIBIT 4.13
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH ALL APPLICABLE STATE SECURITIES OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
XXXXX & WESSON HOLDING CORPORATION
WARRANT
| Warrant No. [#] | Dated: September ___, 2005 |
Xxxxx & Wesson Holding Corporation, a Nevada corporation (the “Company”), hereby certifies
that, for value received, [HOLDER NAME] or its registered assigns (the “Holder”), is entitled to
purchase from the Company up to a total of [___] shares of common stock, $0.001 par value
per share (the “Common Stock”), of the Company (each such share, an “Warrant Share” and all such
shares, the “Warrant Shares”) at an exercise price equal to $5.33 per share (as adjusted from time
to time as provided in Section 9, the “Exercise Price”), at any time and from time to time from and
after six months after the Closing Date (the “Trigger Date”), and through and including the later
of (i) the 180th Trading Day following the Effective Date and
(ii) 210 days after the Closing Date
(the “Expiration Date”), subject to the following terms and conditions. This Warrant (this
“Warrant”) is one of a series of similar warrants issued pursuant to that certain Securities
Purchase Agreement, dated as of the date hereof, by and among the Company and the Investors
identified therein (the “Purchase Agreement”). All such warrants are referred to herein,
collectively, as the “Warrants.”
1. Definitions. In addition to the terms defined elsewhere in this Warrant, capitalized terms
that are not otherwise defined herein have the meanings given to such terms in the Purchase
Agreement.
2. Registration of Warrant. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant Register”), in the name of the Holder
(which shall include the initial Holder or, as the case may be, any registered assignee to which
this Warrant is permissibly assigned hereunder from time to time). The Company may deem and treat
the
registered Holder as the absolute owner of this Warrant for the purpose of any exercise
hereof, any distribution in respect hereof and for all other purposes, absent actual notice to the
contrary.
3. Transfers. The Holder acknowledges and agrees that this Warrant may not be assigned or
transferred in whole or in part except (i) to an Affiliate of the Holder or (ii) to any other
Investor or its Affiliates. The Company shall register any such assignment or transfer of all or
any portion of this Warrant in the Warrant Register, upon (i) surrender of this Warrant, with the
Form of Assignment attached hereto duly completed and signed and (ii) if the registration statement
is not effective, (x) if the assignment or transfer is to another Investor or an Affiliate of
another Investor, delivery of an opinion of counsel reasonably satisfactory to the Company, to the
effect that the transfer of such portion of this Warrant may be made pursuant to an available
exemption from the registration requirements of the Securities Act and all applicable state
securities or blue sky laws and (y) if the assignment or transfer is to an Affiliate of such
Holder, delivery by the transferee of a written statement to the Company certifying that the
transferee is an Affiliate of the Holder and an “accredited investor” as defined in Rule 501(a)
under the Securities Act and making the representations and certifications as set forth in Sections
3.2(b), (c) and (d) of the Purchase Agreement, in each case, to the Company at its address
specified in the Purchase Agreement. Upon any such registration or transfer, a new warrant to
purchase Common Stock, in substantially the form of this Warrant (any such new warrant, a “New
Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the transferee
and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee
shall be deemed the acceptance by such transferee of all of the rights and obligations in respect
of the New Warrant that the Holder has in respect of this Warrant.
4. Exercise and Duration of Warrant.
(a) This Warrant shall be exercisable by the registered Holder at any time and from time to
time on or after the Trigger Date and through and including the Expiration Date. At 6:30 P.M., New
York City time, on the Expiration Date, the portion of this Warrant not exercised prior thereto
shall be and become void and of no value and this Warrant shall be terminated and no longer
outstanding; provided, however, that the Expiration Date shall be extended for each
day following the Effective Date that (i) the Registration Statement is not effective or (ii) that
the Company has suspended sales under the Registration Statement pursuant to Section 6.1(e) of the
Purchase Agreement.
(b) The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice,
in the form attached hereto (the “Exercise Notice”), completed and duly signed, and (ii) payment of
the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised,
and the date such items are delivered to the Company (as determined in accordance with the notice
provisions hereof) is an “Exercise Date.” The delivery by (or on behalf of) the Holder of the
Exercise Notice and the applicable Exercise Price as provided above shall constitute the Holder’s
certification to the Company that its representations contained in Section 3.2(b), (c) and (d) of
the Purchase Agreement are true and correct as of the Exercise Date as if remade in their entirety
(or, in the case of any assignee Holder that is not a party to the
Purchase Agreement, such assignee Holder’s certification to the Company that such
representations are true and correct as to such assignee Holder as of the Exercise Date). The
Holder shall not be required to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice shall have the same effect as
cancellation of the original Warrant and
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issuance of a New Warrant evidencing the right to purchase
the remaining number of Warrant Shares.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than
three Trading Days after the Exercise Date) issue or cause to be issued and cause to be delivered
to or upon the written order of the Holder and in such name or names as the Holder may designate
(provided that, if the Registration Statement is not effective and the Holder directs the Company
to deliver a certificate for the Warrant Shares in a name other than that of the Holder or an
Affiliate of the Holder, it shall deliver to the Company on the Exercise Date an opinion of counsel
reasonably satisfactory to the Company to the effect that the issuance of such Warrant Shares in
such other name may be made pursuant to an available exemption from the registration requirements
of the Securities Act and all applicable state securities or blue sky laws or, if the transferee is
an Affiliate of the Holder, the statement set forth in Section 3(ii)(y) in lieu of such opinion), a
certificate for the Warrant Shares issuable upon such exercise, free of restrictive legends unless
a registration statement covering the resale of the Warrant Shares and naming the Holder as a
selling stockholder thereunder is not then effective or the Warrant Shares are not freely
transferable without volume restrictions pursuant to Rule 144(k) under the Securities Act. The
Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to
have become the holder of record of such Warrant Shares as of the Exercise Date. If the Warrant
Shares can be issued without restrictive legends, the Company shall, upon the written request of
the Holder, use its best efforts to deliver, or shall cause to be delivered, Warrant Shares
hereunder electronically through the Depository Trust & Clearing Corporation or another established
clearing corporation performing similar functions.
(b) This Warrant is exercisable either in its entirety or, from time to time, for a portion of
the number of Warrant Shares. Upon surrender of this Warrant following one or more partial
exercises, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing
the right to purchase the remaining number of Warrant Shares, if requested in writing by the
Holder.
(c) In addition to any other rights available to a Holder, if the Company fails to deliver to
the Holder a certificate representing Warrant Shares on the date on which delivery of such
certificate is required by this Warrant, such Holder may notify the Company via facsimile, mail or
any other written means of its failure to deliver the certificate (a “Delivery Failure Notice”).
If the Company fails to deliver to the Holder a certificate representing Warrant Shares by the
third Trading Day after delivery of the Delivery Failure Notice by the Holder and if, after such
third Trading Day after the delivery of the Delivery Failure Notice the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale
by the Holder of the Warrant Shares that the Holder anticipated receiving from the Company (a
“Buy-In”), then the Company shall, within three Trading Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder in an
amount equal to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s
obligation to deliver such certificate (and to issue such Warrant Shares) shall terminate, or (ii)
promptly honor its obligation to deliver to the Holder a certificate or certificates representing
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such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of the
Buy-In Price over the product of (A) such number of Warrant Shares, times (B) the Closing Price on
the date of the event giving rise to the Company’s obligation to deliver such certificate.
(d) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, the recovery of any judgment against any Person or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. Nothing herein shall limit the Holder’s right to pursue any
other remedies available to it hereunder, at law or in equity, including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing Warrant Shares upon exercise of the Warrant as required
pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of
the issuance of such certificates, all of which taxes and expenses shall be caused paid by the
Company; provided, however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the registration of any certificates for Warrant
Shares or Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder
shall be responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction and, if
requested, customary and reasonable indemnity. If the Holder seeks a New Warrant under such
circumstances, it shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third party costs as the Company may prescribe.
8. Reservation of Warrant Shares. The Company covenants that it will at all times reserve and
keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant
as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise in full of this Warrant, free from preemptive
rights or any other contingent purchase rights of persons other than the Holder (taking into
account the adjustments and restrictions of Section 9). The Company covenants that all Warrant
Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly authorized and issued, fully paid
and nonassessable. Each of the Company and the Holder will take all such action as may be
necessary to assure that such shares of Common Stock may be issued as provided herein
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without
violation of any applicable law or regulation or of any requirements of any securities exchange or
automated quotation system upon which the Common Stock may be listed.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clauses (ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time while this Warrant is outstanding,
distributes to holders of Common Stock (i) evidences of its indebtedness, (ii) any security (other
than a distribution of Common Stock covered by the preceding paragraph), (iii) rights or warrants
to subscribe for or purchase any security, or (iv) any other asset (in each case, “Distributed
Property”), then, upon any exercise of the Warrant that occurs after the record date fixed for
determination of stockholders entitled to receive such distribution, the Holder shall be entitled
to receive, in addition to the Warrant Shares otherwise issuable upon such exercise (if
applicable), the Distributed Property distributed in respect of one share of Common Stock to
holders of Common Stock as of such record date times the number of Warrant Shares for which the
Holder exercises this Warrant (appropriately adjusted for any stock splits, combination or similar
event between such record date and such exercise).
(c) Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company effects any merger or
consolidation of the Company with or into another Person, (ii) the Company effects any sale of all
or substantially all of its assets in one or a series of related transactions, (iii) any tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for other securities, cash
or property, or (iv) the Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property (other than as a result of a subdivision or combination of
shares of Common Stock covered by Section 9(a) above) (in any such case, a “Fundamental
Transaction”), then the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property as it would have been entitled to
receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon
exercise in full of
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this Warrant (the “Alternate Consideration”). The aggregate Exercise Price for
this Warrant will not be affected by any such Fundamental Transaction, but the Company shall
apportion such aggregate Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate Consideration. If
holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
At the Holder’s request, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new Warrant consistent with the foregoing provisions and
evidencing the Holder’s right to purchase the Alternate Consideration for the aggregate Exercise
Price upon exercise thereof. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or surviving entity to
comply with the provisions of this paragraph (c) and insuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
(d) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price
pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of
Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to
such adjustment.
(e) Calculations. All calculations under this Section 9 shall be made to the nearest cent or
the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at
any given time shall not include shares owned or held by or for the account of the Company;
provided that such shares, upon disposition to a third party, shall then be considered outstanding.
(f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 9, the Company at its
expense will, at the written request of the Holder, promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a
statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing the transactions
giving rise to such adjustments and showing in reasonable detail the facts upon which such
adjustment is based, and deliver a copy of each such certificate to the Holder and to the Company’s
Transfer Agent.
(g) Notice of Corporate Events. If, while this Warrant is outstanding, the Company (i)
declares a dividend or any other distribution of cash, securities or other property in respect of
its Common Stock, including, without limitation, any granting of rights or warrants to subscribe
for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves,
enters into any agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then the Company shall deliver to the Holder a notice describing the material terms
and conditions of such transaction, at least 15 Trading Days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in
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order to participate in or vote
with respect to such transaction; provided, however, that the failure to deliver such notice or any
defect therein shall not affect the validity of the corporate action required to be described in
such notice.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price in immediately
available funds.
11. Limitation on Exercise. Notwithstanding anything to the contrary contained herein, the number
of shares of Common Stock that may be acquired by the Holder upon any exercise of this Warrant (or
otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following
such exercise (or other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its Affiliates and any other Persons whose beneficial ownership of Common
Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act, does
not exceed [4.999%][9.99%] (the “Maximum Percentage”) of the total number of issued and outstanding shares
of Common Stock (including for such purpose the shares of Common Stock issuable upon such
exercise). For such purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. Each delivery of
an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated
the limitation set forth in this paragraph and determined that issuance of the full number of
Warrant Shares requested in such Exercise Notice is permitted under this paragraph. The Company’s
obligation to issue shares of Common Stock in excess of the limitation referred to in this Section
shall be suspended (and, except as provided below, shall not terminate or expire notwithstanding
any contrary provisions hereof) until such time, if any, as such shares of Common Stock may be
issued in compliance with such limitation; provided that, if, as of 6:30
p.m., New York City time, on the Expiration Date, the Company has not received written notice that
the shares of Common Stock may be issued in compliance with such limitation, the Company’s
obligation to issue such shares shall terminate. By written notice to the Company, the Holder may
waive the provisions of this Section or increase or decrease the Maximum Percentage to any other
percentage specified in such notice, but (i) any such waiver or increase will not be effective
until the 61st day after such notice is delivered to the Company, and (ii) any such waiver or
increase or decrease will apply only to the Holder and not to any other holder of Warrants.
12. Fractional Shares. The Company shall not be required to issue or cause to be issued
fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant Share
would, except for the provisions of this Section, be issuable upon exercise of this Warrant, the
number of Warrant Shares to be issued will be rounded up to the nearest whole share.
13. Notices. Any and all notices or other communications or deliveries hereunder (including
without limitation any Exercise Notice) shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section prior to 6:30 p.m. (eastern standard
time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in this Section on a day
that is not a Trading Day or later than 6:30 p.m. (eastern standard time) on any Trading Day, (iii)
the Trading Day following the date of deposit with a
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nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The
address and facsimile numbers for such notices or communications shall be as set forth in the
Purchase Agreement.
14. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon 30
days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its corporate trust or
stockholder services business shall be a successor warrant agent under this Warrant without any
further act. Any such successor warrant agent shall promptly cause notice of its succession as
warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s
last address as shown on the Warrant Register.
15. Miscellaneous.
(a) Subject to the restrictions on transfer set forth herein, this Warrant may be assigned by
the Holder. This Warrant may not be assigned by the Company except to a successor in the event of
a Fundamental Transaction. This Warrant shall be binding on and inure
to the benefit of the parties hereto and their respective successors and assigns. Subject to
the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than
the Company and the Holder any legal or equitable right, remedy or cause of action under this
Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or
their respective successors and assigns.
(b) The Company will not, by amendment of its governing documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality of the foregoing, the
Company (i) will not increase the par value of any Warrant Shares above the amount payable therefor
on such exercise, (ii) will take all such action as may be reasonably necessary or appropriate in
order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares on
the exercise of this Warrant, and (iii) will not close its stockholder books or records in any
manner which interferes with the timely exercise of this Warrant.
(c) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. THE CORPORATE LAWS OF THE STATE OF NEVADA
SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF
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ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN
(INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH
EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND HOLDER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) The headings herein are for convenience only, do not constitute a part of this Warrant and
shall not be deemed to limit or affect any of the provisions hereof.
(e) In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor and, upon such agreement, shall incorporate such substitute
provision in this Warrant.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
| XXXXX & WESSON HOLDING CORPORATION | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common Stock under the
foregoing Warrant)
foregoing Warrant)
To: Xxxxx & Wesson Holding Corporation
The undersigned is the Holder of Warrant No. ___(the “Warrant”) issued by Xxxxx & Wesson
Holding Corporation, a Nevada corporation (the “Company”). Capitalized terms used herein and not
otherwise defined have the respective meanings set forth in the Warrant.
1. The Warrant is currently exercisable to purchase a total of ___Warrant Shares.
2. The undersigned Holder hereby exercises its right to purchase ___Warrant
Shares pursuant to the Warrant.
3. The holder shall pay the sum of $___to the Company in accordance with the terms
of the Warrant.
4. Pursuant to this exercise, the Company shall deliver to the holder ___Warrant
Shares in accordance with the terms of the Warrant.
5. Following this exercise, the Warrant shall be exercisable to purchase a total of
___Warrant Shares.
Dated:___, ___
Name of Holder:
(Print)
|
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By: |
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Name: |
||||
Title: |
||||
(Signature must conform in all respects to name of Xxxxxx as specified on the face of the Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___the right represented by the within Warrant to purchase ___
shares of Common Stock of Xxxxx & Wesson Holding Corporation to which the within Warrant relates
and appoints ___as attorney to transfer said right on the books of Xxxxx & Wesson
Holding Corporation with full power of substitution in the premises.
Dated:___, ___
| (Signature must conform in all respects to name of Xxxxxx as specified on the face of the Warrant) | ||
Address of Transferee |
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In the presence of: |
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