Contract
NEITHER
THIS SECURITY, NOR ANY SECURITY FOR WHICH THIS SECURITY IS EXERCISABLE, HAS BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), 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,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
| Warrant No. FW-[ ] |
July 1,
2010
|
1. Definitions. As
used in this Warrant, the following terms shall have the respective definitions
set forth in this Section 1. Capitalized terms that are used and not
defined in this Warrant that are defined in the Purchase Agreement (as defined
below) shall have the respective definitions set forth in the Purchase
Agreement.
“Commencement Date” means the
earlier of (i) one year following the Original Issue Date and (ii) six months
after the initial closing of the sale by the Company of Equity Securities in an
offering registered under the Securities Act of 1933, as amended.
“Exercise Price” means the
price from time at which a Warrant Share may be purchased under this
Warrant. The Exercise Price shall initially be $1.00 and shall be
automatically changed to the Qualified Price upon the Reset Date and shall be
subject to adjustment pursuant to Section 10.
“Equity Securities” means any
stock or similar securities, including, without limitation, securities
containing equity features and securities containing profit participation
features, or any securities convertible into or exchangeable for, with or
without consideration, any stock or similar securities, or any securities
carrying any warrant, right or option to subscribe to or purchase any shares of
capital stock, or any such warrant or right.
“Expiration Date” means the
third anniversary of the Commencement Date.
“Fundamental Transaction” means
any of the following: (1) the Company effects any merger or consolidation of the
Company with or into another Person, (2) the Company effects any sale of all or
substantially all of its consolidated assets in one or a series of related
transactions, (3) 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
either of the Company or another Person, or (4) the dissolution, liquidation or
winding up of the affairs of the Company.
“Original Issue Date” July 1,
2010.
"Purchase Agreement" means the
Securities Purchase Agreement, dated July 1, 2010, to which the Company and the
original Holder are parties.
“Qualified Financing” means the
next financing of the Company through the issuance of Equity Securities
resulting in gross proceeds to the Company of not less than
$2,000,000.
“Qualified Price” means
valuation per share of Common Stock used in the Qualified
Financing.
“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
Sheets LLC (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 NYSE/AMEX, the NASDAQ Global
Select market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board (or any successor exchange, market or quotation system to any of
the foregoing) on which the Common Stock is listed or quoted.
2. Adjustment on Reset
Date. Effective upon the closing of the Qualified Financing
(the “Reset Date”), the
Exercise Price shall be automatically changed to equal the Qualified Price.
Promptly following the Reset Date, the Company will notify the Holder of the
Exercise Price, as adjusted on the Reset Date. In the event that the
original Holder party to the Purchase Agreement transfers all or any portion of
the Warrant issued to such Holder, or if any Holder exercises all or any part of
the Warrant prior to the Reset Date, appropriate adjustments shall be made in
the foregoing so as to account for such transfers and exercises, it being the
intention that the foregoing adjustment be given effect as if the adjustments
were made on the Original Issue Date and that transfers and exercises be
accounted for as if they had occurred thereafter.
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3. 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.
4. Registration of
Transfers. This Warrant may not be transferred except upon the
Company’s reasonable satisfaction that such transfer will be in compliance with
the Securities Act of 1933, as amended, and all other applicable
law. 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 as Annex A 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.
5. Exercise and Duration of
Warrants.
(a) This
Warrant shall be exercisable by the registered Holder at any time and from time
to time after the date hereof through and including the earlier of (i) 5:00
p.m., New York City time on the Expiration Date and (ii) the Redemption Date, if
any. Any portion of this Warrant not exercised prior thereto shall be
and become void and of no value.
(b) If,
during the term of this Warrant, the Company authorizes or approves or enters
into any agreement contemplating any Fundamental Transaction, the Company shall
provide the Holder with at least ten (10) days’ advance written notice prior to
the consummation of such Fundamental Transaction and this Warrant shall
terminate unless exercised immediately prior to the consummation of such
Fundamental Transaction.
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(c) The
Company shall not effect any exercise of this Warrant, and the Holder of this
Warrant shall not have the right to exercise any portion of this Warrant
pursuant to Section 5(a), to the extent that after giving effect to such
exercise, the Holder (together with the Holder's affiliates) would beneficially
own in excess of 4.99% (the “Maximum Percentage”) of the number of
shares of Common Stock outstanding immediately after giving effect to such
exercise. For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its affiliates shall
include the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is being made,
but shall exclude the number of shares of Common Stock which would be issuable
upon (A) exercise of the remaining, unexercised portion of this Warrant
beneficially owned by the Holder or any of its affiliates and (B) exercise or
conversion of the unexercised or nonconverted portion of any other securities of
the Company beneficially owned by the Holder or any of its affiliates
(including, without limitation, any other notes or warrants) subject to a
limitation on conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence, for purposes
of this Section 5(b), beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as
amended. For purposes of this Section 5(b), in determining the number
of outstanding shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the Company's most recent
Form 10-KSB, Form 10-K, Form 10-QSB, Form 10-Q or Form 8-K, as the case may be
(y) a more recent public announcement by the Company or (z) any other notice by
the Company or its transfer agent setting forth the number of shares of Common
Stock outstanding. For any reason at any time, upon the written or
oral request of the Holder, the Company shall within three (3) Business Days
confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the conversion or
exercise of securities of the Company, including this Warrant, by the Holder or
its affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. By written notice to the Company, the
Holder may increase or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% specified in such notice; provided that (i) any such
increase will not be effective until the sixty-first (61st) day
after such notice is delivered to the Company, and (ii) any such increase or
decrease will apply only to the Holder and not to any other holder of
Warrants.
6. Delivery of Warrant
Shares.
(a) The
Holder shall not be required to physically surrender this Warrant unless this
Warrant is being exercised for the aggregate Warrant Shares represented by this
Warrant. To effect exercises hereunder, the Holder shall duly execute
and deliver to the Company at its address for notice set forth herein (or such
to such other address as the Company may designate by notice in writing to the
Holder), an Exercise Notice in the form of Annex B hereto, and
shall pay the Exercise Price, if applicable, multiplied by the number of Warrant
Shares that the Holder intends to purchase hereunder. The Company shall promptly
(but in no event later than three 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, which certificate may bear a legend
substantially similar to the legend set forth at the top of the first page of
this Warrant or, if the Common Stock is uncertificated, the Company shall cause
the issuance of the Warrant Shares to be reflected in the records of the Company
which shall bear a notation substantially similar to the legend set forth at the
top of the first page of this Warrant. The Company shall, upon
request of the Holder and subsequent to the date on which a registration
statement covering the resale of the Warrant Shares has been declared effective
by the Securities and Exchange Commission, use its commercially reasonable
efforts to deliver Warrant Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions, if available. A “Date of Exercise” for purposes
of this Warrant, 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) payment of the Exercise Price
for the number of Warrant Shares so indicated by the Holder to be
purchased.
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(b) If
by the third 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
6(a), then the Holder will have the right to rescind such exercise.
(c) 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.
(d) Nothing
herein shall limit a 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.
(e) The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant pursuant to the terms
hereof.
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, 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 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.
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9. Reservation of Warrant
Shares. The Company covenants that during the term that this
Warrant is exercisable, the Company 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.
(a) Stock Dividends and
Splits. In the event that 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 or any other equity
or equity equivalent securities 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 number of Warrant Shares and the Exercise
Price shall each be adjusted, as appropriate, to give the Holder on exercise for
the same aggregate Exercise Price, the total number, class and kind of shares as
the Holder would have owned had the Warrant be exercised prior to the event and
the holder continued to hold such shares until after the event requiring
adjustment. Any adjustment made pursuant to this Section 10(a) shall
become effective concurrently with such event.
(b) Notice of
Adjustments. Upon the occurrence of any adjustment pursuant to
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.
(c) 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 to
all of its stockholders, except for grants of options to management, (ii)
authorizes, approves or 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 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. The Holder
is entitled to exercise this Warrant during the 10 day period commencing on the
date of such notice to the effective date of the event triggering such
notice.
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11. Payment of Exercise
Price. Subject to Section 12(c) below, the Exercise Price shall be paid
by the Holder to the Company in immediately available funds by wire transfer as
instructed by the Company immediately prior to exercise or by certified or bank
check made payable to the Company.
12. Redemption
(a) Redemption. The
Company shall have the right to redeem this Warrant in full for a redemption
price (the “Redemption
Price”) equal to $0.01 per Warrant Share then issuable upon exercise of
this Warrant by giving written notice of the Company’s election to redeem this
Warrant (the “Redemption
Notice”) provided that (i) more than one year has elapsed since the
Original Issuance Date, (ii) the closing price of the Common Stock in the
Trading Market for the twenty (20) consecutive Trading Days ending on the
Trading Day immediately preceding the day on which the Redemption Notice is sent
to the Holder is equal to or exceeds 200% of the Qualified Price and (iii) the
resale of the Warrant Shares is then the subject of an effective Registration
Statement filed under the 1933 Act.
(b) Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
all or a portion of the Warrants, the Company shall fix a time and date for the
redemption (the “Redemption
Date”). Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than ten (10) days prior to the
Redemption Date to the registered Holder at the address of such Holder as it
shall appear on the Warrant Register. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the registered Holder received such notice.
(c) Exercise After Notice of
Redemption. This Warrant may be exercised in accordance with
Section 5 of this Warrant at any time after Notice of Redemption shall have been
given by the Company pursuant to this Section 12 hereof and prior to the time
and date fixed for redemption. On and after the Redemption Date, the
record holders of such Warrants shall have no further rights except to receive,
upon surrender of the Warrants, the Redemption Price.
13. No Fractional
Shares. No fractional Warrant Shares will be issued in
connection with any exercise of this Warrant.
14. Notices. Unless
otherwise provided, any notice required or permitted under this Warrant shall be
given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given upon
such delivery, (ii) if given by telex or telecopier, then such notice shall be
deemed given upon receipt of confirmation of complete transmittal, (iii) if
given by mail, then such notice shall be deemed given upon the earlier of (A)
receipt of such notice by the recipient or (B) three days after such notice is
deposited in first class mail, postage prepaid, (iv) if given by an
internationally recognized overnight air courier, then such notice shall be
deemed given one Business Day after delivery to such carrier, and (v) if given
by electronic mail, then such notice shall be deemed given upon transmission
thereof. The addresses for such communications shall
be: (i) if to the Company, to First Blush Brands, Inc., Attn: Xxxxxxx
X. Xxxxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx #000, Xxxxxxx Xxxxx,
XX 00000, or to Facsimile No.: 000-000-0000 or
to xxxxxxx@xxxxxxxxxx.xxx (or to such other address as the Company shall
indicate in writing in accordance with this Section), with a copy to Xxxxxx X.
Xxxxxxxx, Esq., Blank Rome LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
facsimile no.: (000) 000-0000, xxxxxxxxx@xxxxxxxxx.xxx, 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. Initially, the Company shall serve as warrant agent
under this Warrant. Upon five (5) 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. Dispute
Resolution.
(a) Any
controversy or claim that arises out of or relating to any Transaction Document,
or the breach thereof, shall be finally settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on any award rendered by the arbitrator may be
entered by any court having jurisdiction thereof.
(b) Any
arbitration conducted pursuant to this Section 16 shall be conducted before a
single neutral arbitrator who shall be a member of the Bar of the State of
Delaware actively engaged in the practice of law for at least ten years and
experienced in the area of corporate law.
(c) The
place of arbitration shall be Wilmington, Delaware.
(d) Any
arbitration conducted pursuant to this Section 16 shall be conducted under the
laws of the State of Delaware. The parties acknowledge that the
Transaction Documents evidence a transaction involving interstate
commerce. The Federal Arbitration Act and the Commercial Arbitration
Rules of the American Arbitration Association shall govern the interpretation,
enforcement, and proceedings pursuant to the arbitration clause in this Section
16.
(e) If
more than one arbitration is at any time pending under this Section 16 and any
party contends that two or more arbitrations are substantially related and that
the issue should be heard in one proceeding, the arbitrator selected in the
first-filed of such proceedings shall determine whether, in the interests of
justice and efficiency, the proceedings should be consolidated before that
arbitrator.
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(f) Consistent
with the expedited nature of arbitration, each party will, upon the written
request of any other party, promptly provide such other party with copies of
documents relevant to the issues raised by any claim or
counterclaim. Any dispute regarding discovery, or the relevance or
scope thereof, shall be determined by the arbitrator in such arbitration, which
determination shall be conclusive. All discovery shall be completed
within forty-five days following the appointment of the arbitrator.
(g) The
award in any arbitration commenced under this Section 16 shall be made within
nine (9) months of the filing of the related demand for arbitration, and the
arbitrator in such arbitration shall agree to comply with such schedule before
accepting appointment, provided that such time limit may be extended by
agreement of the parties or by the arbitrator if the arbitrator determines that
the same is necessary.
(h) No
arbitrator appointed pursuant to this Section 16 shall have any authority to
award punitive or other damages not measured by the prevailing party’s actual
damages, except as may be required by statute.
(i) The
arbitrator in any arbitration pursuant to this Section 16 shall award to the
prevailing party, if any as determined by the arbitrator, all of its costs and
fees. For such purposes, “costs and fees” shall mean all reasonable
pre-award expenses of the arbitration and the mediation, if any, including the
arbitrator’s fees, the mediator’s fees, administrative fees, travel expenses,
out-of-pocket expenses such as copying and telephone, court costs, witness fees,
reasonable attorney’s fees and all other costs reasonably incurred by the
prevailing party in enforcing its rights under any Transaction
Document.
(j) The
finding of the arbitrator in any arbitration under this Section 16 will be final
and binding. Judgment on any award rendered by the arbitrator may be entered in
any court having jurisdiction thereover; provided, that any award of specific
performance shall (1) be documented in a detailed written opinion containing
findings of fact and law, and (2) be subject to review by any court to which
such award is submitted for entry to the same extent that a similar award by the
Delaware Court of Chancery would be subject to review by the Delaware Supreme
Court.
17. 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, together with the Purchase
Agreement, constitute the entire agreement between the Company and the Holder
with respect to the subject matter of this Warrant. This Warrant may
be amended only in writing signed by the Company and the Holder and its
successors and assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by, and construed in accordance with, the
internal laws of the State of Delaware without regard to the choice of law
principles thereof.
(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.
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(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) 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.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
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.
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By:
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Name:
Xxxxxxx X. Xxxx
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Title:
President
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ANNEX
A
WARRANT
ORIGINALLY ISSUED JULY 1, 2010
WARRANT
NO. FW-[ ]
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:
_______________, ____
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_______________________________________
(Signature
must conform in all respects to name of
holder
as specified on the face of the Warrant)
_______________________________________
Address
of Transferee
_______________________________________
_______________________________________
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In the
presence of:
__________________________
Attach
form W-9 or W-8, as applicable, for Transferee.
ANNEX
B
EXERCISE
NOTICE
WARRANT
DATED JULY 1, 2010
WARRANT
NO. FW-[__]
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.
(1) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(2) The
Holder shall pay the sum of $____________ to the Company in accordance with the
terms of the Warrant.
(3) Pursuant
to this Exercise Notice, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
(5) 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 10 of this Warrant to which this
notice relates and that the undersigned is an “accredited investor” as defined
in Regulation D under the Securities Act of 1933, as amended.
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Dated:
_______________, ____
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Name
of Holder:
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(Print)
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By:
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Name:
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Title:
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(Signature
must conform in all respects to name of holder as specified on the face of
the Warrant)
|
13
