HUDSON TECHNOLOGIES, INC. WARRANT
XXXXXX
TECHNOLOGIES, INC.
WARRANT
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Warrant
No. [__]
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Original
Issue Date: _____ __, 20091
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Xxxxxx
Technologies, Inc., a New York corporation (the “Company”), hereby
certifies that, as partial compensation for placement agent services, Xxxx
Capital Partners, LLC or its registered assigns (the “Holder”), is entitled
to purchase from the Company up to a total of [_______]2 shares
of Common Stock (each such share, a “Warrant Share” and
collectively, the “Warrant Shares”), at
any time and from time to time from and after the date that is six (6) months
after the Original Issue Date and through and including ______ __, 2014
(the “Expiration
Date”), and subject to the following terms and conditions:
1. Definitions. As
used in this Warrant, the following terms shall have the respective definitions
set forth in this Section 1.
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are
used in and construed under Rule 144.
“Business Day” means
any day except Saturday, Sunday and any day which is a federal legal holiday or
a day on which banking institutions in the State of New York or State of
California are authorized or required by law or other governmental action to
close.
“Common Stock” means
the common stock of the Company, par value $0.01 per share, and any securities
into which such common stock may hereafter be reclassified.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Exercise Price” means
$1.4375, subject to adjustment in accordance with Section 9.
“Fundamental
Transaction” means any of the following: (i) the Company effects any
merger or consolidation of the Company with or into another Person (other than a
merger or consolidation in which the Company is the surviving corporation and
there is no reclassification of the Common Stock), (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 by the Company
during the period in which this Warrant is not exercisable, 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.
1 A
Closing Date (as defined in the Placement Agent Agreement).
2 5% of
the Shares issued on the applicable Closing Date (as defined in the Placement
Agent Agreement).
“New York Courts”
means the state courts sitting in the County of Rockland, State of New York and
the United District Court for the Southern District of New York.
“Original Issue Date”
means the Original Issue Date first set forth on the first page of this
Warrant.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Rule 144” means Rule
144 promulgated by the Securities and Exchange Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission
having substantially the same effect as such Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Subsidiary” means any
“significant subsidiary” as defined in Rule 1-02(w) of the Regulation S-X
promulgated by the Securities and Exchange Commission under the Exchange
Act.
“Trading Day” means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading
Market (other than the OTC Bulletin Board), a day on which the Common Stock is
traded in the over-the-counter market, as reported by the OTC Bulletin Board, or
(iii) if the Common Stock is not quoted on any Trading Market, a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
Pink OTC Markets Inc. (or any similar organization or agency succeeding to its
functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
“Trading Market” means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.
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 record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
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3. Registration
of Transfers. The Company shall register the transfer of any
portion of this Warrant in the Warrant Register, upon surrender of this Warrant,
with the Form of Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. 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 thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant. Notwithstanding the foregoing, if deemed necessary by
the Company, as a condition of transferring any portion of this
Warrant, it shall have received from the proposed transferee such
information and documents as is reasonably necessary so that the portion of the
Warrant may be issued to the transferee in compliance with the Act and any
applicable state securities laws without registration or qualification
thereunder.
4. Exercise
and Duration of Warrants. This Warrant shall be exercisable by
the registered Holder at any time and from time to time after the date that is 6
months after the Original Issue Date through and including the Expiration
Date. At 5:00 p.m. California time on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and become void and
of no value. The Company may not call or redeem any portion of this
Warrant without the prior written consent of the affected Holder.
5. Delivery
of Warrant Shares.
(a) To
effect exercises hereunder, the Holder shall not be required to physically
surrender this Warrant unless the aggregate Warrant Shares represented by this
Warrant is being exercised. Upon delivery of the Exercise Notice (in
the form attached hereto) to the Company (with the attached Warrant Shares
Exercise Log) at its address for notice set forth herein (or such other address
as the Company shall advise the Holder in writing) and upon payment of the
Exercise Price multiplied by the number of Warrant Shares that the Holder
intends to purchase hereunder, the Company shall promptly (but in no event later
than seven (7) Trading Days after the Date of Exercise (as defined herein))
issue and deliver to the Holder, a certificate for the Warrant Shares issuable
upon such exercise. The Company shall, upon request of the Holder and
subsequent to the date on which the Warrant Shares have been publicly sold
pursuant to an effective registration statement covering the resale of the
Warrant Shares or Rule 144, use its commercially reasonable efforts to deliver
Warrant Shares hereunder electronically through the Depository Trust Corporation
(“DTC”) or
another established clearing corporation performing similar functions, if
available, provided, that, the
Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver the Warrant Shares electronically through
the DTC. A “Date of Exercise”
means the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, payment of the Exercise Price for
the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If
by the seventh (7th)
Trading Day after a Date of Exercise the Company fails to deliver the required
number of Warrant Shares in the manner required pursuant to Section 5(a),
then the Holder will have the right to rescind such exercise.
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(c) If
by the seventh (7th)
Trading Day after a Date of Exercise the Company fails to deliver the required
number of Warrant Shares in the manner required pursuant to Section 5(a),
and if after such third (3rd)
Trading Day and prior to the receipt of such Warrant Shares, 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 which the
Holder anticipated receiving upon such exercise (a “Buy-In”), then the
Company shall (1) pay in cash to the Holder the amount by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Warrant Shares that the Company was required to deliver to the Holder
in connection with the exercise at issue by (B) the closing bid price of the
Common Stock on the Date of Exercise and (2) at the option of the Holder, either
reinstate the portion of the Warrant and equivalent number of Warrant Shares for
which such exercise was not honored or deliver to the Holder the number of
shares of Common Stock that would have been issued had the Company timely
complied with its exercise and delivery obligations hereunder. The
Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In.
(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, any waiver or consent with respect
to any provision hereof, 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 a Xxxxxx’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. Investment
Representation and Legend. Unless the offering and sale of
this Warrant by the Company to Holder is subject to an effective registration
statement under the Securities Act, the Holder, by acceptance of this Warrant,
represents and warrants to the Company that the holder is acquiring the Warrant
for its own account for investment purposes and not with a view toward the
distribution thereof. Unless the offering and sale of the Warrant
Shares to be issued upon the particular exercise of the Warrant shall have been
effectively registered under the Securities Act, the Company shall be under no
obligation to issue the Warrant Shares covered by such exercise unless and until
the Holder who exercises the Warrant shall provide the Company with
such information that it may reasonably request to satisfy itself that the
issuance of the Warrant Shares upon exercise of the Warrant complies with an
applicable federal and state securities laws, including, but not limited to, a
representation by such Holder to the Company, at the time of such exercise, that
such person or entity is acquiring such Warrant Shares for his or her or its own
account, for investment and not with a view to, or for sale in connection with,
the distribution of any such Warrant Shares, in which event the person acquiring
such Warrant Shares shall be bound by the provisions of a legend, substantially
as follows, which shall be endorsed upon the certificate(s) evidencing the
Warrant Shares issued pursuant to such exercise:
-4-
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”). Such
shares may not be sold, transferred or otherwise disposed of unless they have
first been registered under the Securities Act or, unless, in the opinion of
counsel satisfactory to the Company’s counsel, such registration is not
required.”
7. Charges,
Taxes and Expenses. Issuance and delivery of Warrant Shares
upon exercise of this Warrant shall be made without charge to the Holder for any
issue or transfer 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 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. 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.
8. 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 customary and
reasonable indemnity (which shall not include a surety bond), if
requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation
of this Warrant, then the Holder shall deliver such mutilated Warrant to the
Company as a condition precedent to the Company’s obligation to issue the New
Warrant.
9. 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 of this entire 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 10). 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, issued and fully paid and
nonassessable.
10. 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 10.
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(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 clause (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination.
(b) Fundamental
Transactions. If, at any time while this Warrant is
outstanding there is 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 this Warrant (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 option and request, any
successor to the Company or surviving entity in such Fundamental Transaction (if
other than the Company) shall issue to the Holder a new warrant substantially in
the form of this Warrant and 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 (b) and ensuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
(c) Number of
Warrant Shares. Simultaneously with any adjustment to the
Exercise Price pursuant to this Section 10 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 adjusted number of
Warrant Shares shall be the same as the aggregate Exercise Price in effect
immediately prior to such adjustment.
(d) Calculations. All
calculations under this Section 10 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, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
-6-
(e) Notice of
Adjustments. Upon the occurrence of each adjustment pursuant
to this Section 10, the
Company at its expense will 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 detail the facts upon which such adjustment is
based. Upon written request, the Company will promptly deliver a copy
of each such certificate to the Holder and to the Company’s transfer
agent.
(f) Notice of
Corporate Events. If 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 (but only to the extent such disclosure
would not result in the dissemination of material, non-public information to the
Holder) at least ten (10) calendar days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in order to
participate in or vote with respect to such transaction, and the Company will
take all steps reasonably necessary in order to insure that the Holder is given
the practical opportunity to exercise this Warrant prior to such time so as 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.
11. Payment
of Exercise Price. The Holder may
pay the Exercise Price in one of the following manners:
(a) Cash
Exercise. The Holder may deliver immediately available funds;
or
(b) Cashless
Exercise. The Holder may notify the Company in an Exercise
Notice of its election to utilize cashless exercise, in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y
[(A-B)/A]
where:
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X
=
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the
number of Warrant Shares to be issued to the
Holder.
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Y
=
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the
number of Warrant Shares with respect to which this Warrant is being
exercised.
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A
=
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the
average of the closing prices of the Common Stock for the five (5) Trading
Days immediately prior to (but not including) the Date of
Exercise.
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B
=
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the
Exercise Price.
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For
purposes of Rule 144 promulgated under the Securities Act, it is intended 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.
12. Limitations
on Exercise. Notwithstanding anything to the contrary
contained herein, the number of Warrant Shares 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 insure 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 9.99% 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. This provision shall not restrict the number of shares of
Common Stock which a Holder may receive or beneficially own in order to
determine the amount of securities or other consideration that such Holder may
receive in the event of a Fundamental Transaction as contemplated in Section 10 of
this Warrant. This restriction may not be
waived. Notwithstanding anything to the contrary contained in this
Warrant, (a) no term of this Section may be waived by any party, nor amended
such that the threshold percentage of ownership would be directly or indirectly
increased, (b) this restriction runs with the Warrant and may not be modified or
waived by any subsequent holder hereof and (c) any attempted waiver,
modification or amendment of this Section will be void ab initio.
13. No
Fractional Shares. No fractional shares of Warrant Shares will
be issued in connection with any exercise of this Warrant. In lieu of
any fractional shares which would, otherwise be issuable, the Company shall pay
cash equal to the product of such fraction multiplied by the closing price of
one Warrant Share as reported by the applicable Trading Market on the date of
exercise.
14. 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 5:00 p.m. (California 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 5:00 p.m.
(California time) on any Trading Day, (iii) the Trading Day following the date
of mailing, if sent by nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be
given. The addresses for such communications shall be: (i)
if to the Company, to Xxxxxx Technologies, Inc., 0 Xxxx Xxxx Xxxxx,
Xxxxx 0000, Xxxxx Xxxxx, Xxx Xxxx 00000, Attn: Chief Executive Officer, or
to facsimile no.: (000) 000-0000 (or such other address as the Company
shall indicate in writing in accordance with this Section), or (ii) if to the
Holder, to the address or facsimile number appearing on the Warrant Register or
such other address or facsimile number as the Holder may provide to the Company
in accordance with this Section.
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15. Warrant
Agent. The Company shall serve as warrant agent under this
Warrant. Upon ten (10) 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 shareholders 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.
16. Miscellaneous.
(a) 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 and their successors and
assigns. The foregoing sentence shall be subject to the restrictions
on waivers and amendments set forth in Section 12 of
this Warrant.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of
this Warrant and the transactions herein contemplated (“Proceedings”)
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively in the New York
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any Proceeding, any claim that it is not personally subject to the jurisdiction
of any New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such 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 Warrant 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. If either party shall commence a Proceeding
to enforce any provisions of this Warrant, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
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(c) 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.
(d) 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 so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) The
Holder is not entitled to any registration rights, except for the right of the
Placement Agent to require the Company to include this Warrant, the exercise of
this Warrant and the Warrant Shares in the Prospectus (as defined in the
Placement Agent Agreement, dated as of July 31, 2009, by and between Xxxx
Capital Partners, LLC and the Company).
(f) In
accordance with Rule 5110(g) of the FINRA Rules, this Warrant and the Warrant
Shares shall not be shall not be sold during the Offering (as defined in the
Placement Agent Agreement, dated as of July 31, 2009, by and between Xxxx
Capital Partners, LLC and the Company), or sold, transferred, assigned, pledged,
or hypothecated, or be the subject of any hedging, short sale, derivative, put,
or call transaction that would result in the effective economic disposition of
the securities by any person for a period of 180 days immediately following the
Original Issue Date.
(g) Prior
to exercise of this Warrant, the Holder hereof shall not, by reason of being a
Holder, be entitled to any rights of a stockholder with respect to the Warrant
Shares.
[SIGNATURE
PAGE FOLLOWS]
-10-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
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XXXXXX
TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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-11-
EXERCISE
NOTICE
XXXXXX
TECHNOLOGIES, INC.
WARRANT
DATED ___________ ___, 2009
The
undersigned Holder hereby irrevocably elects to
purchase _____________ shares of Common Stock pursuant to the above
referenced Warrant. Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Warrant.
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(1)
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The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
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(2)
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The
Holder intends that payment of the Exercise Price shall be made as (check
one):
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¨
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“Cash
Exercise” under Section 11
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¨
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“Cashless
Exercise” under Section 11
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(3)
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If
the holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the
Warrant.
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(4)
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Pursuant
to this Exercise Notice, the Company shall deliver to the holder
_______________ Warrant Shares in accordance with the terms of the
Warrant.
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(5)
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By
its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that in giving effect to the exercise evidenced
hereby the Holder will not beneficially own in excess of the number of
shares of Common Stock (determined in accordance with Section 13(d)
of the Securities Exchange Act of 1934) permitted to be owned under Section 12
of this Warrant to which this notice
relates.
|
|
Dated:
___________, ____
|
Name
of Xxxxxx:
|
||
|
(Print)
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
(Signature
must conform in all respects to name of
holder
as specified on the fact of the
Warrant)
|
|||
-12-
WARRANT
SHARES EXERCISE LOG
|
Date
|
Number
of Warrant
Shares
Available
to
be Exercised
|
Number
of Warrant
Shares
Exercised
|
Number
of Warrant
Shares
Remaining
to
be Exercised
|
||||
-13-
XXXXXX
TECHNOLOGIES, INC.
WARRANT
DATED ______ __, 2009
WARRANT
NO. [__]
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 above-captioned
Warrant to purchase ____________ shares of Common Stock to which such
Warrant relates and appoints ________________ attorney to transfer said right on
the books of the Company 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
_______________________________________
_______________________________________
In the
presence of:
__________________________
-14-
