NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER 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
THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY 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.
PHOENIX INTERNATIONAL INDUSTRIES, INC.
--------------------------------------
WARRANT
-------
Warrant No. 3 Date of Original Issuance
December 13, 2001
Phoenix International Industries, Inc., a Florida corporation
(the "Company"), hereby certifies that, for value received, New
Millennium Capital Partners II, LLC, or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company up to a total of 975,000 shares of common
stock, $.001 par value per share (the "Common Stock"), of the Company
(each such share, a "Warrant Share" and all such shares, the "Warrant
Shares") at an exercise price per share equal to 50% of the average of
the lowest three inter-day trading prices of the Common Stock during
the twenty Trading Days (as defined in the Debentures) immediately
preceding the Date of Exercise (as defined herein) (as such exercise
price may be adjusted from time to time as provided in Section 8, the
"Exercise Price"), at any time and from time to time from and after
the date hereof and through and including December 13, 2003 (the
"Expiration Date"), and subject to the following terms and conditions:
1. 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, and the Company shall not be affected by
notice to the contrary.
1. Registration of Transfers and Exchanges.
----------------------------------------
1
(a) 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 Transfer Agent or to the Company at its address for notice set
forth in Section 12. 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 of such transferee of all of the rights and obligations
of a holder of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof
by the Holder to the office of the Company at its address for notice
set forth in Section 12 for one or more New Warrants, evidencing in
the aggregate the right to purchase the number of Warrant Shares which
may then be purchased hereunder. Any such New Warrant will be dated
the date of such exchange.
2. Duration and Exercise of Warrants.
----------------------------------
(a) This Warrant shall be exercisable by the registered Holder
on any business day before 6:30 P.M., New York City time, at any time
and from time to time on or after the date hereof to 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. Prior to the Expiration Date, the Company
may not call or otherwise redeem this Warrant.
(b) Upon surrender of this Warrant, with the Form of
Election to Purchase attached hereto duly completed and signed, to the
Company at its address for notice set forth in Section 12 and upon
payment of the Exercise Price multiplied by the number of Warrant
Shares that the Holder intends to purchase hereunder, in the manner
provided hereunder, all as specified by the Holder in the Form of
Election to Purchase, the Company shall promptly (but in no event
later than 3 business days after the Date of Exercise) 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, a
certificate for the Warrant Shares issuable upon such exercise, free
of restrictive legends except (i) either in the event that 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 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), or (ii) if
this Warrant shall have been issued pursuant to a written agreement
between the original Holder and the Company, as required by such
agreement. Any person so designated by the Holder to receive Warrant
Shares shall be deemed to have become holder of record of such Warrant
Shares as of the Date of Exercise of this Warrant. The Company shall,
upon request of the Holder, if available, use its best efforts to
deliver Warrant Shares hereunder electronically through the Depository
Trust Corporation or another established clearing corporation
performing similar functions.
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A "Date of Exercise" means the date on which the
Company shall have received (i) this Warrant (or any New Warrant, as
applicable), with the Form of Election to Purchase attached hereto (or
attached to such New Warrant) appropriately completed and duly signed,
and (ii) payment of the Exercise Price for the number of Warrant
Shares so indicated by the holder hereof to be purchased.
(c) This Warrant shall be exercisable, either in its entirety
or, from time to time, for a portion of the number of Warrant Shares.
If less than all of the Warrant Shares which may be purchased under
this Warrant are exercised at any time, 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 for which no
exercise has been evidenced by this Warrant.
3. Piggyback Registration Rights.
------------------------------ During the Effectiveness Period
(as defined in the Registration Rights Agreement, of even date herewith,
between the Company and the original Holder), the Company may not file
any registration statement with the Securities and Exchange Commission
(other than registration statements of the Company filed on Form S-8
or Form S-4, each as promulgated under the Securities Act, pursuant to
which the Company is registering securities pursuant to a Company
employee benefit plan or pursuant to a merger, acquisition or similar
transaction including supplements thereto, but not additionally filed
registration statements in respect of such securities) at any time when
there is not an effective registration statement covering the resale of
the Warrant Shares and naming the Holder as a selling stockholder
thereunder, unless the Company provides the Holder with not less than
20 days notice of its intention to file such registration statement and
provides the Holder the option to include any or all of the applicable
Warrant Shares therein. The piggyback registration rights granted to
the Holder pursuant to this Section shall continue until all of the
Holder's Warrant Shares have been sold in accordance with an effective
registration statement or upon the Expiration Date. The Company will
pay all registration expenses in connection therewith.
4. Payment of Taxes.
----------------- The Company will pay all documentary stamp
taxes attributable to the issuance of Warrant Shares upon the exercise
of this Warrant; 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.
5. 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 indemnity, if requested, satisfactory to it.
Applicants for a New Warrant under such circumstances shall also comply
with such other reasonable regulations and procedures and pay such other
reasonable charges as the Company may prescribe.
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6. 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 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 actual contingent purchase rights of
persons other than the Holder (taking into account the adjustments and
restrictions of Section 8). The Company covenants that all Warrant
Shares that shall be 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.
7. 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 8. Upon
each such adjustment of the Exercise Price pursuant to this Section 8
(a)(b)(c) or (e), the Holder shall thereafter prior to the Expiration
Date be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of Warrant Shares obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares issuable upon exercise of this Warrant
immediately prior to such adjustment and dividing the product thereof
by the Exercise Price resulting from such adjustment.
(a) If the Company, at any time while this Warrant is
outstanding, (i) shall pay a stock dividend (except scheduled
dividends paid on outstanding preferred stock as of the date hereof
which contain a stated dividend rate) or otherwise make a distribution
or distributions on shares of its Common Stock or on any other class
of capital stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock into a larger number of shares, or
(iii) combine outstanding shares of Common Stock into a smaller number
of shares, the Exercise Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding before such event and
of which the denominator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding after such event. Any
adjustment made pursuant to this Section shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision or combination, and shall apply to successive subdivisions
and combinations.
(b) In case of any reclassification of the Common Stock or
any compulsory share exchange pursuant to which the Common Stock is
converted into other securities, cash or property, then the Holder
shall have the right thereafter to exercise this Warrant only into
the shares of stock and other securities and property receivable
upon or deemed to be held by holders of Common Stock following such
reclassification or share exchange, and the Holder shall be entitled
upon such event to receive such amount of securities or property equal
to the amount of Warrant Shares such Holder would have been entitled
to had such Holder exercised this Warrant immediately prior to such
reclassification or share exchange. The terms of any such reclassification
or share exchange shall include such terms so as to continue to give to
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the Holder the right to receive the securities or property set forth in
this Section 8(b) upon any exercise following any such reclassification
or share exchange.
(c) If the Company, at any time while this Warrant is
outstanding, shall distribute to all holders of Common Stock (and
not to holders of this Warrant) evidences of its indebtedness or
assets or rights or warrants to subscribe for or purchase any security
(excluding those referred to in Sections 8(a), (b) and (d)), then in
each such case the Exercise Price shall be determined by multiplying
the Exercise Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the
Exercise Price determined as of the record date mentioned above, and
of which the numerator shall be such Exercise Price on such record
date less the then fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed
applicable to one outstanding share of Common Stock as determined by
the Company's independent certified public accountants that regularly
examines the financial statements of the Company (an "Appraiser").
(d) If the Company or any subsidiary thereof, as
applicable with respect to Common Stock Equivalents (as defined
below), at any time while this Warrant is outstanding, shall issue
shares of Common Stock or rights, warrants, options or other
securities or debt that are convertible into or exchangeable for
shares of Common Stock ("Common Stock Equivalents") entitling any
Person to acquire shares of Common Stock at a price per share less
than the Exercise Price (if the holder of the Common Stock or Common
Stock Equivalent so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options
or rights issued in connection with such issuance, be entitled to
receive shares of Common Stock at a price less than the Exercise
Price, such issuance shall be deemed to have occurred for less than
the Exercise Price), then, at the sole option of the Holder, either
(i) the Exercise Price shall be multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such shares of Common
Stock or such Common Stock Equivalents plus the number of shares of
Common Stock which the offering price for such shares of Common Stock
or Common Stock Equivalents would purchase at the Exercise Price, and
the denominator of which shall be the sum of the number of shares of
Common Stock outstanding immediately prior to such issuance plus the
number of shares of Common Stock so issued or issuable, or (2) the
Exercise Price shall be replaced with the conversion, exchange or
purchase price for such Common Stock Equivalents (including any reset
provisions thereof), provided, that for purposes hereof, all shares of
Common Stock that are issuable upon conversion, exercise or exchange
of Common Stock Equivalents shall be deemed outstanding immediately
after the issuance of such Common Stock Equivalents. Such adjustment
shall be made whenever such shares of Common Stock or Common Stock
Equivalents are issued. However, upon the expiration of any Common
Stock Equivalents the issuance of which resulted in an adjustment in
the Exercise Price pursuant to this Section, if any such Common Stock
Equivalents shall expire and shall not have been exercised, the
Exercise Price shall immediately upon such expiration be recomputed
and effective immediately upon such expiration be increased to the
price which it would have been (but reflecting any other adjustments
in the Exercise Price made pursuant to the provisions of this Section
after the issuance of such Common Stock Equivalents) had the
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adjustment of the Exercise Price made upon the issuance of such Common
Stock Equivalents been made on the basis of offering for subscription
or purchase of only that number of shares of Common Stock actually
purchased upon the exercise of such Common Stock Equivalents actually
exercised. The Company shall notify the Holder in writing, no later
than the business day following the issuance of any Common Stock or
Common Stock Equivalent subject to this section, indicating therein
the applicable issuance price, or applicable reset price, exchange
price, exercise price and other pricing terms.
(e) In case of any (1) merger or consolidation of the
Company with or into another Person, or (2) sale by the Company of
more than one-half of the assets of the Company (on a book value
basis) in one or a series of related transactions, the Holder shall
have the right thereafter to (A) exercise this Warrant for the shares
of stock and other securities, cash and property receivable upon or
deemed to be held by holders of Common Stock following such merger,
consolidation or sale, and the Holder shall be entitled upon such
event or series of related events to receive such amount of
securities, cash and property as the Common Stock for which this
Warrant could have been exercised immediately prior to such merger,
consolidation or sales would have been entitled, or (B) in the case of
a merger or consolidation, (x) require the surviving entity to issue
common stock purchase warrants equal to the number Warrant Shares to
which this Warrant then permits, which newly warrant shall be
identical to this Warrant, and (y) simultaneously with the issuance
of such warrant, the Holder of such warrant shall have the right to
exercise such warrant only into shares of stock and other securities,
cash and property receivable upon or deemed to be held by holders of
Common Stock following such merger or consolidation or (C) require
the surviving entity from such merger, acquisition or business
combination to pay to the Holder, in cash, the Black Scholes value of
this Warrant. In the case of clause (B), the exercise price for such
new warrant shall be based upon the amount of securities, cash and
property that each share of Common Stock would receive in such
transaction and the Exercise Price of this Warrant immediately prior
to the effectiveness or closing date for such transaction. The terms
of any such merger, sale or consolidation shall include such terms so
as continue to give the Holder the right to receive the securities,
cash and property set forth in this Section upon any conversion or
redemption following such event. This provision shall similarly apply
to successive such events.
(f) For the purposes of this Section 8, the following
clauses shall also be applicable:
(i) Record Date.
------------ In case the Company shall take a
record of the holders of its Common Stock for the purpose of entitling
them (A) to receive a dividend or other distribution payable in Common
Stock or in securities convertible or exchangeable into shares of
Common Stock, or (B) to subscribe for or purchase Common Stock or
securities convertible or exchangeable into shares of Common Stock,
then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription
or purchase, as the case may be.
(ii) Treasury Shares.
---------------- 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
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disposition of any such shares shall be considered an issue or sale of
Common Stock.
(g) All calculations under this Section 8 shall be made to
the nearest cent or the nearest 1/100th of a share, as the case may be.
(h) Whenever the Exercise Price is adjusted pursuant to
Section 8(c) above, the Holder, after receipt of the determination
by the Appraiser, shall have the right to select an additional
appraiser (which shall be a nationally recognized accounting firm), in
which case the adjustment shall be equal to the average of the
adjustments recommended by each of the Appraiser and such appraiser.
The Holder shall promptly mail or cause to be mailed to the Company, a
notice setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment.
Such adjustment shall become effective immediately after the record
date mentioned above.
(i) If:
(i) the Company shall declare a dividend
(or any other distribution) on its
Common Stock; or
(ii) the Company shall declare a special
nonrecurring cash dividend on or a
redemption of its Common Stock; or
(iii) the Company shall authorize the
granting to all holders of the Common
Stock rights or warrants to subscribe
for or purchase any shares of capital
stock of any class or of any rights; or
(iv) the approval of any stockholders of
the Company shall be required in
connection with any reclassification
of the Common Stock, any consolidation
or merger to which the Company is a
party, any sale or transfer of all or
substantially all of the assets of the
Company, or any compulsory share
exchange whereby the Common Stock is
converted into other securities, cash
or property; or
(v) the Company shall authorize the
voluntary dissolution, liquidation or
winding up of the affairs of the
Company,
then the Company shall cause to be mailed to each Holder at their last
addresses as they shall appear upon the Warrant Register, at least 20
calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record
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is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to
become effective or close, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up;
provided, however, that the failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
8. Payment of Exercise Price. The Holder shall pay the Exercise
Price in one of the following manners:
(a) Cash Exercise.
-------------- The Holder may deliver immediately
available funds; or
(b) Cashless Exercise.
------------------ At any time after the earlier
to occur of the Effectiveness Date (as defined in the Registration
Rights Agreement) and the date the initial registration statement
filed pursuant to the Registration Rights Agreement is declared
effective by the Commission, when a registration statement covering
the resale of the Warrant Shares and naming the Holder as a selling
stockholder thereunder is not then effective, then the Holder may
indicate in the Form of Election to Purchase, its election to utilize
a "net" or "cashless" exercise to pay for Warrant Shares and the
Company shall issue to the Holder the number of Warrant Shares
determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued
to the Holder.
Y = the number of Warrant Shares with respect to
which this Warrant is being exercised.
A = the average of the closing sale prices of the
Common Stock for the five (5) trading days
immediately prior to (but not including) the
Date of Exercise.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is
intended, understood and acknowledged that the Warrant Shares issued
in a cashless exercise transaction shall be deemed to have been acquired
by the Holder, and the holding period for the Warrant Shares shall be
deemed to have been commenced, on the issue date.
9. Certain Exercise Restrictions.
------------------------------
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(a) 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 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 4.999% 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.
By written notice to the Company, the Holder may waive the provisions
of this Section but (i) any such waiver will not be effective until the
61st day after such notice is delivered to the Company, and (ii) any
such waiver will apply only to the Holder and not to any other holder
of Warrants.
(b) 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 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 9.999% (the "Additional
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. By written notice to the Company, the
Holder may waive the provisions of this Section or increase or
decrease the Additional Maximum Percentage to any other percentage
specified in such notice, but (i) any such waiver will not be
effective until the 61st day after such notice is delivered to the
Company, and (ii) any such waiver will apply only to the Holder and
not to any other holder of Warrants.
10. Fractional Shares.
------------------ The Company shall not be required to
issue or cause to be issued fractional Warrant Shares on the
exercise of this Warrant. The number of full Warrant Shares which
shall be issuable upon the exercise of this Warrant shall be computed
on the basis of the aggregate number of Warrant Shares purchasable on
exercise of this Warrant so presented. If any fraction of a Warrant
Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash
equal to the Exercise Price multiplied by such fraction.
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11. Notices.
-------- Any and all notices or other communications or
deliveries hereunder 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
telephone number specified in this Section prior to 6:30 p.m. (New
York City time) on a business day, (ii) the business day after the
date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section
later than 6:30 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the business 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 0000 Xxxxxxx
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, facsimile: (000) 000-0000,
attention Chief Financial Officer, or (ii) if to the Holder, to the
Holder at 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.
12. Warrant Agent.
-------------- The Company shall serve as warrant agent
under this Warrant. Upon thirty (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 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.
13 Miscellaneous.
--------------
(a) This Warrant shall be binding on and inure to the
benefit of the parties hereto and their respective successors and
assigns. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
(b) Subject to Section 14(a), above, nothing in this
Warrant shall be construed to give to any person or corporation other
than the Company and the Holder any legal or equitable right, remedy
or cause under this Warrant. This Warrant shall inure to the sole and
exclusive benefit of the Company and the Holder.
(c) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement 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
the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the
state and federal courts sitting in the City of New York, Borough of
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Manhattan (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 (including with respect to the enforcement of this Agreement),
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, or such New York Courts are
improper or inconvenient venue for such proceeding. 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. Each party hereto
(including its affiliates, agents, officers, directors and employees)
hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an
action or proceeding to enforce any provisions of this Agreement, then
the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorneys fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
action or proceeding.
(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 so agreeing, shall incorporate such
substitute provision in this Warrant.
[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.
PHOENIX INTERNATIONAL INDUSTRIES, INC.
By:_____________________________________
Name: /S/Xxxxxx Xxxxxxx
Title: Chief Executive Officer
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12
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed by the Holder to exercise the right to purchase shares
of Common Stock under the Warrant to which this form applies, issued
by Phoenix International Industries, Inc. (the "Company"))
To Phoenix International Industries, Inc.:
In accordance with the Warrant enclosed with this Form of
Election to Purchase, the undersigned hereby irrevocably elects to
purchase _____________ shares of common stock, $.001 par value per
share (the "Common Stock") of the Company and , if such Holder is not
utilizing the cashless exercise provisions set forth in this Warrant,
encloses herewith $________ in cash, certified or official bank check
or checks, which sum represents the aggregate Exercise Price (as
defined in the Warrant) for the number of shares of Common Stock to
which this Form of Election to Purchase relates, together with any
applicable taxes payable by the undersigned pursuant to the Warrant.
By the delivery of this Form of Election to Purchase the
undersigned represents and warrants to the Company that it is an
accredited investor under Rule 501(a) of the Securities Act of 1933,
as amended, and that its share ownership of the Company's Common Stock
will not exceed the percentage ownership set forth in Section 10 of
the Warrant.
The undersigned requests that certificates for the shares of
Common Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY
OR
TAX IDENTIFICATION NUMBER
________________________________
_____________________________________________________________________
(Please print name and address)
If the number of shares of Common Stock issuable upon this
exercise shall not be all of the shares of Common Stock which the
undersigned is entitled to purchase in accordance with the enclosed
Warrant, the undersigned requests that a New Warrant (as defined in
the Warrant) evidencing the right to purchase the shares of Common
Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
_____________________________________________________________________
(Please print name and address)
_____________________________________________________________________
_____________________________________________________________________
Dated:__________,____ Name of Xxxxxx:
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(Print)___________________________
(By:)_____________________________
(Name:)
(Title:)
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
14
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 Phoenix International Industries, Inc. to which the within Warrant
relates and appoints ________________ attorney to transfer said right
on the books of Phoenix International Industries, Inc. with full power
of substitution in the premises.
Dated:
_______________, ____
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the face
of the Warrant)
_______________________________________
Address of Transferee
_______________________________________
_______________________________________
In the presence of:
__________________________
15
