Contract
EXHIBIT
4.5
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
SERIES
D
WARRANT TO PURCHASE
SHARES
OF
COMMON STOCK
OF
ASTRATA
GROUP INCORPORATED
Expires
December 19, 2013
|
No.:
W-D-07-__
|
Number
of Shares: ___________
|
|
Date
of Issuance: December 19, 2007
|
FOR
VALUE
RECEIVED, the undersigned, Astrata Group Incorporated, a Nevada corporation
(together with its successors and assigns, the "Issuer"), hereby
certifies that _______________ or its registered assigns is entitled to
subscribe for and purchase, during the Term (as hereinafter defined), up
to
__________ (_________) shares (subject to adjustment as hereinafter provided)
of
the duly authorized, validly issued, fully paid and non-assessable Common
Stock
of the Issuer, at an exercise price per share equal to the Warrant Price
then in
effect, subject, however, to the provisions and upon the terms and conditions
hereinafter set forth. Capitalized terms used in this Warrant and not
otherwise defined herein shall have the respective meanings specified in
Section
9 hereof.
1.
Term. The term of this Warrant shall commence on December 19,
2007 and shall expire at 6:00 p.m., eastern time, on December 19,
2013 (such period being the "Term").
2.
Method
of Exercise; Payment; Issuance of New Warrant; Transfer and
Exchange.
(a) Time
of Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part during the Term at any time in accordance
with
the terms of the Purchase Agreement for such number of shares of Common Stock
equal to fifty percent (50%) of the number of shares of Common Stock issuable
upon conversion of the shares of Series B-2 Convertible Preferred Stock that
have been exercised by the Holder pursuant to the Series J Warrant issued
by the
Issuer to the Holder pursuant to the Purchase Agreement.
-1-
(b) Method
of Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise form
attached hereto duly executed) at the principal office of the Issuer, and
by the
payment to the Issuer of an amount of consideration therefor equal to the
Warrant Price in effect on the date of such exercise multiplied by the number
of
shares of Warrant Stock with respect to which this Warrant is then being
exercised, payable at such Holder's election (i) by certified or official
bank
check or by wire transfer to an account designated by the Issuer, (ii) by
"cashless exercise" in accordance with the provisions of subsection (c) of
this
Section 2, but only when a registration statement under the Securities Act
providing for the resale of the Warrant Stock is not then in effect, or (iii)
by
a combination of the foregoing methods of payment selected by the Holder
of this
Warrant.
(c) Cashless
Exercise. Notwithstanding any provisions herein to the contrary
and commencing eighteen (18) months following the Original Issue Date if
(i) the
Per Share Market Value of one share of Common Stock is greater than the Warrant
Price (at the date of calculation as set forth below) and (ii) a registration
statement under the Securities Act providing for the resale of the Warrant
Stock
is not then in effect by the date such registration statement is required
to be
effective pursuant to the Registration Rights Agreement (as defined in the
Purchase Agreement) or not effective at any time during the Effectiveness
Period
(as defined in the Registration Rights Agreement) in accordance with the
terms
of the Registration Rights Agreement, unless the registration statement is
not
effective as a result of the Issuer exercising its rights under Section 3(n)
of
the Registration Rights Agreement, in lieu of exercising this Warrant by
payment
of cash, the Holder may exercise this Warrant by a cashless exercise and
shall
receive the number of shares of Common Stock equal to an amount (as determined
below) by surrender of this Warrant at the principal office of the Issuer
together with the properly endorsed Notice of Exercise in which event the
Issuer
shall issue to the Holder a number of shares of Common Stock computed using
the
following formula:
X
= Y - (A)(Y)
B
|
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the
Holder.
|
|
|
Y
=
|
the
number of shares of Common Stock purchasable upon exercise of all
of the
Warrant or, if only a portion of the Warrant is being exercised,
the
portion of the Warrant being
exercised.
|
|
|
A
=
|
the
Warrant Price.
|
B
= the Per Share
Market Value of one share of Common Stock.
(d) Issuance
of Stock Certificates. In the event of any exercise of this
Warrant in accordance with and subject to the terms and conditions hereof,
certificates for the shares of Warrant Stock so purchased shall be dated
the
date of such exercise and delivered to the Holder hereof within a reasonable
time, not exceeding three (3) Trading Days after such exercise (the “Delivery
Date”) or, at the request of the Holder (provided that a registration
statement under the Securities Act providing for the resale of the Warrant
Stock
is then in effect or that the shares of Warrant Stock are otherwise exempt
from
registration), issued and delivered to the Depository
-2-
Trust
Company (“DTC”) account on the Holder’s behalf via the Deposit Withdrawal
Agent Commission System (“DWAC”) within a reasonable time, not exceeding
three (3) Trading Days after such exercise, and the Holder hereof shall be
deemed for all purposes to be the holder of the shares of Warrant Stock so
purchased as of the date of such exercise. Notwithstanding the
foregoing to the contrary, the Issuer or its transfer agent shall be obligated
to issue and deliver the shares to the DTC on a holder’s behalf via DWAC only if
such exercise is in connection with a sale or other exemption from registration
by which the shares may be issued without a restrictive legend and the Issuer
and its transfer agent are participating in DTC through the DWAC
system. The Holder shall deliver this original Warrant, or an
indemnification reasonably acceptable to the Issuer undertaking with respect
to
such Warrant in the case of its loss, theft or destruction, at such time
that
this Warrant is fully exercised. With respect to partial exercises of
this Warrant, the Issuer shall keep written records for the Holder of the
number
of shares of Warrant Stock exercised as of each date of exercise.
(e) Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Exercise. In addition to any other rights available to the
Holder, if the Issuer fails to cause its transfer agent to transmit to the
Holder a certificate or certificates representing the Warrant Stock pursuant
to
an exercise on or before the Delivery Date, and if after such date the Holder
is
required by its broker to purchase (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder
of the
Warrant Stock which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Issuer 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 shares of Warrant Stock that the
Issuer was required to deliver to the Holder in connection with the exercise
at
issue times (B) the price at which the sell order giving rise to such purchase
obligation was executed, and (2) at the option of the Holder, either reinstate
the portion of the Warrant and equivalent number of shares of Warrant Stock
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 Issuer timely
complied with its exercise and delivery obligations hereunder. For
example, if the Holder purchases Common Stock having a total purchase price
of
$11,000 to cover a Buy-In with respect to an attempted exercise of shares
of
Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (1) of the immediately preceding sentence
the Issuer shall be required to pay the Holder $1,000. The Holder shall provide
the Issuer written notice indicating the amounts payable to the Holder in
respect of the Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Issuer. 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 Issuer’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of this Warrant
as required pursuant to the terms hereof.
(f) Transferability
of Warrant. Subject to Section 2(h) hereof, this Warrant may be
transferred by a Holder, in whole or in part, without the consent of the
Issuer. If transferred pursuant to this paragraph, this Warrant may
be transferred on the books of the Issuer by the Holder hereof in person
or by
duly authorized attorney, upon surrender of this Warrant at the principal
office
of the Issuer, properly endorsed (by the Holder executing an assignment in
the
form attached hereto) and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. This Warrant is
exchangeable at the principal office of the Issuer for Warrants to purchase
the
same aggregate number of shares of Warrant Stock, each new Warrant to represent
the right to purchase such number of shares of Warrant Stock as the Holder
hereof shall designate at the time of such exchange. All Warrants
issued on transfers or exchanges shall be dated the Original Issue Date and
shall be identical with this Warrant except as to the number of shares of
Warrant Stock issuable pursuant thereto.
-3-
(g) Continuing
Rights of Holder. The Issuer will, at the time of or at any time
after each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing the extent, if any, of its continuing obligation to
afford to such Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this Warrant,
provided that if any such Holder shall fail to make any such request, the
failure shall not affect the continuing obligation of the Issuer to afford
such
rights to such Holder.
(h) Compliance
with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or
an
exemption from registration, under the Securities Act and any applicable
state
securities laws.
(ii) Except
as provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
-4-
(iii) The
Issuer agrees to reissue this Warrant or certificates representing any of
the
Warrant Stock, without the legend set forth above if at such time, prior
to
making any transfer of any such securities, the Holder shall give written
notice
to the Issuer describing the manner and terms of such transfer. Such
proposed transfer will not be effected until: (a) either (i) the Issuer has
received an opinion of counsel reasonably satisfactory to the Issuer, to
the
effect that the registration of such securities under the Securities Act
is not
required in connection with such proposed transfer, (ii) a registration
statement under the Securities Act covering such proposed disposition has
been
filed by the Issuer with the Securities and Exchange Commission and has become
effective under the Securities Act, (iii) the Issuer has received other evidence
reasonably satisfactory to the Issuer that such registration and qualification
under the Securities Act and state securities laws are not required, or (iv)
the
Holder provides the Issuer with reasonable assurances that such security
can be
sold pursuant to Rule 144 under the Securities Act; and (b) either (i) the
Issuer has received an opinion of counsel reasonably satisfactory to the
Issuer,
to the effect that registration or qualification under the securities or
"blue
sky" laws of any state is not required in connection with such proposed
disposition, or (ii) compliance with applicable state securities or "blue
sky"
laws has been effected or a valid exemption exists with respect
thereto. The Issuer will respond to any such notice from a holder
within three (3) Trading Days. In the case of any proposed transfer
under this Section 2(h), the Issuer will use reasonable efforts to comply
with
any such applicable state securities or "blue sky" laws, but shall in no
event
be required, (x) to qualify to do business in any state where it is not then
qualified, (y) to take any action that would subject it to tax or to the
general
service of process in any state where it is not then subject, or (z) to comply
with state securities or “blue sky” laws of any state for which registration by
coordination is unavailable to the Issuer. The restrictions on
transfer contained in this Section 2(h) shall be in addition to, and not
by way
of limitation of, any other restrictions on transfer contained in any other
section of this Warrant. Whenever a certificate representing the
Warrant Stock is required to be issued to a the Holder without a legend,
in lieu
of delivering physical certificates representing the Warrant Stock, the Issuer
shall cause its transfer agent to electronically transmit the Warrant Stock
to
the Holder by crediting the account of the Holder or Holder's Prime Broker
with
DTC through its DWAC system (to the extent not inconsistent with any provisions
of this Warrant or the Purchase Agreement).
(i) Accredited
Investor Status. In no event may the Holder exercise this Warrant
in whole or in part unless the Holder is an “accredited investor” as defined in
Regulation D under the Securities Act.
3. Stock
Fully Paid; Reservation and Listing of Shares; Covenants.
(a) Stock
Fully Paid. The Issuer represents, warrants, covenants and agrees
that all shares of Warrant Stock which may be issued upon the exercise of
this
Warrant or otherwise hereunder will, when issued in accordance with the terms
of
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges created by or through the
Issuer. The Issuer further covenants and agrees that during the
period within which this Warrant may be exercised, the Issuer will at all
times
have authorized and reserved for the purpose of the issuance upon exercise
of
this Warrant a number of authorized but unissued shares of Common Stock equal
to
at least one hundred fifty (150%) of the number of shares of Common Stock
issuable upon exercise of this Warrant without regard to any limitations
on
exercise.
-5-
(b) Reservation. If
any shares of Common Stock required to be reserved for issuance upon exercise
of
this Warrant or as otherwise provided hereunder require registration or
qualification with any Governmental Authority under any federal or state
law
before such shares may be so issued, the Issuer will in good faith use its
best
efforts as expeditiously as possible at its expense to cause such shares
to be
duly registered or qualified. If the Issuer shall list any shares of
Common Stock on any securities exchange or market it will, at its expense,
list
thereon, and maintain and increase when necessary such listing, of, all shares
of Warrant Stock from time to time issued upon exercise of this Warrant or
as
otherwise provided hereunder (provided that such Warrant Stock has been
registered pursuant to a registration statement under the Securities Act
then in
effect), and, to the extent permissible under the applicable securities exchange
rules, all unissued shares of Warrant Stock which are at any time issuable
hereunder, so long as any shares of Common Stock shall be so
listed. The Issuer will also so list on each securities exchange or
market, and will maintain such listing of, any other securities which the
Holder
of this Warrant shall be entitled to receive upon the exercise of this Warrant
if at the time any securities of the same class shall be listed on such
securities exchange or market by the Issuer.
(c) Covenants. The
Issuer shall not by any action including, without limitation, amending the
Articles of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other action, avoid or seek to avoid the observance
or
performance of any of the terms of this Warrant, but will at all times in
good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the
Issuer will (i) not permit the par value, if any, of its Common Stock to
exceed
the then effective Warrant Price, (ii) not amend or modify any provision
of the
Articles of Incorporation or by-laws of the Issuer in any manner that would
adversely affect the rights of the Holders of the Warrants, (iii) take all
such
action as may be reasonably necessary in order that the Issuer may validly
and
legally issue fully paid and nonassessable shares of Common Stock, free and
clear of any liens, claims, encumbrances and restrictions (other than as
provided herein) upon the exercise of this Warrant, and (iv) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be reasonably
necessary to enable the Issuer to perform its obligations under this
Warrant.
(d) Loss,
Theft, Destruction of Warrants. Upon receipt of evidence
satisfactory to the Issuer of the ownership of and the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to the Issuer
or, in the case of any such mutilation, upon surrender and cancellation of
such
Warrant, the Issuer will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing
the
right to purchase the same number of shares of Common Stock.
(e) Payment
of Taxes. The Issuer will pay any documentary stamp taxes
attributable to the initial issuance of the Warrant Stock issuable upon exercise
of this Warrant; provided, however, that the Issuer shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates representing Warrant
Stock in a name other than that of the Holder in respect to which such shares
are issued.
-6-
4. Adjustment
of Warrant Price. The price at which such shares of Warrant Stock
may be purchased upon exercise of this Warrant shall be subject to adjustment
from time to time as set forth in this Section 4. The Issuer shall give the
Holder notice of any event described below which requires an adjustment pursuant
to this Section 4 in accordance with the notice provisions set forth in Section
5.
(a) Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or
Sale.
(i) In
case the Issuer after
the Original Issue Date shall do any of the following (each, a "Triggering
Event"): (a) consolidate or merge with or into any other Person and the
Issuer shall not be the continuing or surviving corporation of such
consolidation or merger, or (b) permit any other Person to consolidate with
or
merge into the Issuer and the Issuer shall be the continuing or surviving
Person
but, in connection with such consolidation or merger, any Capital Stock of
the
Issuer shall be changed into or exchanged for Securities of any other Person
or
cash or any other property, or (c) transfer all or substantially all of its
properties or assets to any other Person, or (d) effect a capital reorganization
or reclassification of its Capital Stock, then, and in the case of each such
Triggering Event, proper provision shall be made to the Warrant Price and
the
number of shares of Warrant Stock that may be purchased upon exercise of
this
Warrant so that, upon the basis and the terms and in the manner provided
in this
Warrant, the Holder of this Warrant shall be entitled upon the exercise hereof
at any time after the consummation of such Triggering Event, to the extent
this
Warrant is not exercised prior to such Triggering Event, to receive at the
Warrant Price as adjusted to take into account the consummation of such
Triggering Event, in lieu of the Common Stock issuable upon such exercise
of
this Warrant prior to such Triggering Event, the Securities, cash and property
to which such Holder would have been entitled upon the consummation of such
Triggering Event if such Holder had exercised the rights represented by this
Warrant immediately prior thereto (including the right of a shareholder to
elect
the type of consideration it will receive upon a Triggering Event), subject
to
adjustments (subsequent to such corporate action) as nearly equivalent as
possible to the adjustments provided for elsewhere in this Section 4;
provided, however, the Holder at its option may elect to receive
shares of Common Stock in an amount equal to eighty percent (80%) of the
average
VWAP of the Common Stock for the forty (40) Trading Days preceding the date
of
such Triggering Event. Immediately upon the occurrence of a
Triggering Event, the Issuer shall notify the Holder in writing of such
Triggering Event and provide the calculations in determining the number of
shares of Warrant Stock issuable upon exercise of the new warrant and the
adjusted Warrant Price. Upon the Holder’s request, the continuing or
surviving corporation as a result of such Triggering Event shall issue to
the
Holder a new warrant of like tenor evidencing the right to purchase the adjusted
number of shares of Warrant Stock and the adjusted Warrant Price pursuant
to the
terms and provisions of this Section 4(a)(i). Notwithstanding the
foregoing to the contrary, this Section 4(a)(i) shall only apply if the
surviving entity pursuant to any such Triggering Event is a company that
has a
class of equity securities registered pursuant to the Securities Exchange
Act of
1934, as amended, and its common stock is listed or quoted on a national
securities exchange, national automated quotation system or the OTC Bulletin
Board. In the event that the surviving entity pursuant to any such
Triggering Event is not a public company that is registered pursuant to the
Securities Exchange Act of 1934, as amended, or its common stock is not listed
or quoted on a national securities exchange, national automated quotation
system
or the OTC Bulletin Board, then the Holder shall have the right to demand
that
the Issuer pay to the Holder an amount in cash equal to the value of this
Warrant calculated in accordance with the Black-Scholes formula.
-7-
(ii) In
the event that the Holder has elected not to exercise this Warrant prior
to the
consummation of a Triggering Event and has also elected not to receive shares
of
Common Stock pursuant to the provisions of Section 4(a)(i) above, so long
as the
surviving entity pursuant to any Triggering Event is a company that has a
class
of equity securities registered pursuant to the Securities Exchange Act of
1934,
as amended, and its common stock is listed or quoted on a national securities
exchange, national automated quotation system or the OTC Bulletin Board,
the
surviving entity and/or each Person (other than the Issuer) which may be
required to deliver any Securities, cash or property upon the exercise of
this
Warrant as provided herein shall assume, by written instrument delivered
to, and
reasonably satisfactory to, the Holder of this Warrant, (A) the obligations
of
the Issuer under this Warrant (and if the Issuer shall survive the consummation
of such Triggering Event, such assumption shall be in addition to, and shall
not
release the Issuer from, any continuing obligations of the Issuer under this
Warrant) and (B) the obligation to deliver to such Holder such Securities,
cash
or property as, in accordance with the foregoing provisions of this subsection
(a), such Holder shall be entitled to receive, and the surviving entity and/or
each such Person shall have similarly delivered to such Holder an opinion
of
counsel for the surviving entity and/or each such Person, which counsel shall
be
reasonably satisfactory to such Holder, or in the alternative, a written
acknowledgement executed by the President or Chief Financial Officer of the
Issuer, stating that this Warrant shall thereafter continue in full force
and
effect and the terms hereof (including, without limitation, all of the
provisions of this subsection (a)) shall be applicable to the Securities,
cash
or property which the surviving entity and/or each such Person may be required
to deliver upon any exercise of this Warrant or the exercise of any rights
pursuant hereto.
(b) Stock
Dividends, Subdivisions and Combinations. If at any time the
Issuer shall:
(i) make
or issue or set a record date for the holders of the Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of
Common
Stock, or
(iii) combine
its outstanding shares of Common Stock into a smaller number of shares of
Common
Stock,
-8-
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number
of
shares of Common Stock for which this Warrant is exercisable immediately
prior
to the occurrence of such event would own or be entitled to receive after
the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the
number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock
for
which this Warrant is exercisable immediately after such
adjustment.
(c) Certain
Other Distributions. If at any time the Issuer shall make or
issue or set a record date for the holders of the Common Stock for the purpose
of entitling them to receive any dividend or other distribution
of:
(i) cash,
(ii) any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash, Common
Stock
Equivalents or Additional Shares of Common Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash, Common Stock Equivalents
or
Additional Shares of Common Stock),
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
shall
be adjusted to equal the product of the number of shares of Common Stock
for
which this Warrant is exercisable immediately prior to such adjustment
multiplied by a fraction (A) the numerator of which shall be the Per Share
Market Value of Common Stock at the date of taking such record and (B) the
denominator of which shall be such Per Share Market Value minus the amount
allocable to one share of Common Stock of any such cash so distributable
and of
the fair value (as determined in good faith by the Board of Directors of
the
Issuer and supported by an opinion from an investment banking firm mutually
agreed upon by the Issuer and the Holder) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or
other
subscription or purchase rights so distributable, and (2) the Warrant Price
then
in effect shall be adjusted to equal (A) the Warrant Price then in effect
multiplied by the number of shares of Common Stock for which this Warrant
is
exercisable immediately prior to the adjustment divided by (B) the number
of
shares of Common Stock for which this Warrant is exercisable immediately
after
such adjustment. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value
to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by the Issuer to the holders of its Common
Stock
of such shares of such other class of stock within the meaning of this Section
4(c) and, if the outstanding shares of Common Stock shall be changed into
a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination,
as
the case may be, of the outstanding shares of Common Stock within the meaning
of
Section 4(b).
(d) Issuance
of Additional Shares of Common Stock. In the event the Issuer
shall at any time following the Original Issuance Date issue any Additional
Shares of Common Stock (otherwise than as provided in the foregoing subsections
(b) through (c) of this Section 4), at a price per share less than the Warrant
Price then in effect or without consideration, then the Warrant Price upon
each
such issuance shall be adjusted to the price equal to the consideration per
share paid for such Additional Shares of Common Stock.
-9-
(e) Issuance
of Common Stock Equivalents. In the event the Issuer shall at any
time following the Original Issuance Date take a record of the holders of
its
Common Stock for the purpose of entitling them to receive a distribution
of, or
shall in any manner (whether directly or by assumption in a merger in which
the
Issuer is the surviving corporation) issue or sell, any Common Stock
Equivalents, whether or not the rights to exchange or convert thereunder
are
immediately exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange shall be less than the Warrant
Price
in effect immediately prior to the time of such issue or sale, or if, after
any
such issuance of Common Stock Equivalents, the price per share for which
Additional Shares of Common Stock may be issuable thereafter is amended or
adjusted, and such price as so amended shall be less than the Warrant Price
in
effect at the time of such amendment or adjustment, then the Warrant Price
then
in effect shall be adjusted as provided in Section 4(d). No further
adjustments of the number of shares of Common Stock for which this Warrant
is
exercisable and the Warrant Price then in effect shall be made upon the actual
issue of such Common Stock upon conversion or exchange of such Common Stock
Equivalents.
(f) Other
Provisions applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of
the number of shares of Common Stock for which this Warrant is exercisable
and
the Warrant Price then in effect provided for in this Section 4:
(i) Computation
of Consideration. To the extent that any Additional Shares of
Common Stock or any Common Stock Equivalents (or any warrants or other rights
therefor) shall be issued for cash consideration, the consideration received
by
the Issuer therefor shall be the amount of the cash received by the Issuer
therefor, or, if such Additional Shares of Common Stock or Common Stock
Equivalents are offered by the Issuer for subscription, the subscription
price,
or, if such Additional Shares of Common Stock or Common Stock Equivalents
are
sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price (in any such case subtracting
any
amounts paid or receivable for accrued interest or accrued dividends and
without
taking into account any compensation, discounts or expenses paid or incurred
by
the Issuer for and in the underwriting of, or otherwise in connection with,
the
issuance thereof). In connection with any merger or consolidation in
which the Issuer is the surviving corporation (other than any consolidation
or
merger in which the previously outstanding shares of Common Stock of the
Issuer
shall be changed to or exchanged for the stock or other securities of another
corporation), the amount of consideration therefore shall be, deemed to be
the
fair value, as determined reasonably and in good faith by the Board, of such
portion of the assets and business of the nonsurviving corporation as the
Board
may determine to be attributable to such shares of Common Stock or Common
Stock
Equivalents, as the case may be. The consideration for any Additional
Shares of Common Stock issuable pursuant to any warrants or other rights
to
subscribe for or purchase the same shall be the consideration received by
the
Issuer for issuing such warrants or other rights plus the additional
consideration payable to the Issuer upon exercise of such warrants or other
rights. The consideration for any Additional
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Shares
of
Common Stock issuable pursuant to the terms of any Common Stock Equivalents
shall be the consideration received by the Issuer for issuing warrants or
other rights to subscribe for or purchase such Common Stock Equivalents,
plus
the consideration paid or payable to the Issuer in respect of the subscription
for or purchase of such Common Stock Equivalents, plus the additional
consideration, if any, payable to the Issuer upon the exercise of the right
of
conversion or exchange in such Common Stock Equivalents. In the event
of any consolidation or merger of the Issuer in which the Issuer is not the
surviving corporation or in which the previously outstanding shares of Common
Stock of the Issuer shall be changed into or exchanged for the stock or other
securities of another corporation, or in the event of any sale of all or
substantially all of the assets of the Issuer for stock or other securities
of
any corporation, the Issuer shall be deemed to have issued a number of shares
of
its Common Stock for stock or securities or other property of the other
corporation computed on the basis of the actual exchange ratio on which the
transaction was predicated, and for a consideration equal to the fair market
value on the date of such transaction of all such stock or securities or
other
property of the other corporation. In the event any consideration
received by the Issuer for any securities consists of property other than
cash,
the fair market value thereof at the time of issuance or as otherwise applicable
shall be as determined in good faith by the Board. In the event
Common Stock is issued with other shares or securities or other assets of
the
Issuer for consideration which covers both, the consideration computed as
provided in this Section 4(f)(i) shall be allocated among such securities
and
assets as determined in good faith by the Board.
(ii) When
Adjustments to Be Made. The adjustments required by this Section
4 shall be made whenever and as often as any specified event requiring an
adjustment shall occur, except that any adjustment of the number of shares
of
Common Stock for which this Warrant is exercisable that would otherwise be
required may be postponed (except in the case of a subdivision or combination
of
shares of the Common Stock, as provided for in Section 4(b)) up to, but not
beyond the date of exercise if such adjustment either by itself or with other
adjustments not previously made adds or subtracts less than one percent (1%)
of
the shares of Common Stock for which this Warrant is exercisable immediately
prior to the making of such adjustment. Any adjustment representing a
change of less than such minimum amount (except as aforesaid) which is postponed
shall be carried forward and made as soon as such adjustment, together with
other adjustments required by this Section 4 and not previously made, would
result in a minimum adjustment or on the date of exercise. For the purpose
of
any adjustment, any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(iii) Fractional
Interests. In computing adjustments under this Section 4,
fractional interests in Common Stock shall be taken into account to the
nearest one one-hundredth (1/100th) of a
share.
(iv) When
Adjustment Not Required. If the Issuer shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive
a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the
taking
of such record and any such adjustment previously made in respect thereof
shall
be rescinded and annulled.
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(g) Form
of Warrant after Adjustments. The form of this Warrant need not
be changed because of any adjustments in the Warrant Price or the number
and
kind of Securities purchasable upon the exercise of this Warrant.
(h) Escrow
of Warrant Stock. If after any property becomes distributable
pursuant to this Section 4 by reason of the taking of any record of the holders
of Common Stock, but prior to the occurrence of the event for which such
record
is taken, and the Holder exercises this Warrant, any shares of Common Stock
issuable upon exercise by reason of such adjustment shall be deemed the last
shares of Common Stock for which this Warrant is exercised (notwithstanding
any
other provision to the contrary herein) and such shares or other property
shall
be held in escrow for the Holder by the Issuer to be issued to the Holder
upon
and to the extent that the event actually takes place, upon payment of the
current Warrant Price. Notwithstanding any other provision to the
contrary herein, if the event for which such record was taken fails to occur
or
is rescinded, then such escrowed shares shall be cancelled by the Issuer
and
escrowed property returned.
5. Notice
of Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 4 hereof (for purposes of this
Section 5, each an "adjustment"), the Issuer shall cause its Chief
Financial Officer to prepare and execute a certificate setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated (including
a
description of the basis on which the Board made any determination hereunder),
and the Warrant Price and Warrant Share Number after giving effect to such
adjustment, and shall cause copies of such certificate to be delivered to
the
Holder of this Warrant promptly after each adjustment. Any dispute
between the Issuer and the Holder of this Warrant with respect to the matters
set forth in such certificate may at the option of the Holder of this Warrant
be
submitted to a national or regional accounting firm reasonably acceptable
to the
Issuer and the Holder, provided that the Issuer shall have ten (10) days
after receipt of notice from such Holder of its selection of such firm to
object
thereto, in which case such Holder shall select another such firm and the
Issuer
shall have no such right of objection. The firm selected by the
Holder of this Warrant as provided in the preceding sentence shall be instructed
to deliver a written opinion as to such matters to the Issuer and such Holder
within thirty (30) days after submission to it of such dispute. Such
opinion shall be final and binding on the parties hereto. The costs
and expenses of the initial accounting firm shall be paid equally by the
Issuer
and the Holder and, in the case of an objection by the Issuer, the costs
and
expenses of the subsequent accounting firm shall be paid in full by the
Issuer.
6. Fractional
Shares. No fractional shares of Warrant Stock will be issued in
connection with any exercise hereof, but in lieu of such fractional shares,
the
Issuer shall round the number of shares to be issued upon exercise up to
the
nearest whole number of shares.
7. Ownership
Cap and Exercise Restriction. Notwithstanding anything to the
contrary set forth in this Warrant, at no time may a Holder of this Warrant
exercise this Warrant if the number of shares of Common Stock to be issued
pursuant to such exercise would exceed, when aggregated with all other shares
of
Common Stock owned by such Holder and its
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affiliates
at such time, the number of shares of Common Stock which would result in
such
Holder and its affiliates beneficially owning (as determined in accordance
with
Section 13(d) of the Exchange Act and the rules thereunder) in excess
of 9.99% of the then issued and outstanding shares of Common Stock;
provided, however, that upon a Holder of this Warrant providing
the Issuer with sixty-one (61) days notice (pursuant to Section 13 hereof)
(the
"Waiver Notice") that such Holder would like to waive this Section 7 with
regard to any or all shares of Common Stock issuable upon exercise of this
Warrant, this Section 7 will be of no force or effect with regard to all
or a
portion of the Warrant referenced in the Waiver Notice; provided,
further, that during the sixty-one (61) day period prior to the
expiration of the Term, the Holder may waive this Section 7 by providing
a
Waiver Notice at any time during such sixty-one (61) day period;
provided, further, that any Waiver Notice provided during the
sixty-one (61) day period prior to expiration of the Term will not be effective
until the last day of the Term.
8. Issuer's
Redemption Option. If (A) the Per Share Market Value of the
Common Stock for any twenty (20) consecutive Trading Days equals or exceeds
$5.00 per share (as may be adjusted for any stock splits or combinations
of the
Common Stock) and (B) the trading volume of the Common Stock for each Trading
Day of such twenty (20) Trading Day period equals or exceeds 50,000 shares
of
Common Stock, the Issuer may, at any time thereafter upon twenty (20) Trading
Days prior written notice (the “Issuer Redemption Notice”) to the Holder,
redeem the unexercised portion of this Warrant in cash at a price equal to
the
number of shares of Warrant Stock with respect to the unexercised portion
of
this Warrant multiplied by $0.0001 (the “Issuer Redemption Price”);
provided, that, in connection with any redemption by the Issuer
under this Section 8, (A) the registration statement (the ‘Registration
Statement”) filed by the Issuer with the Securities and Exchange Commission
providing for the resale of the Warrant Stock and the shares of Common Stock
issuable upon conversion of the Series B Convertible Preferred Stock issued
pursuant to the Purchase Agreement is then in effect and has been effective,
without lapse or suspension of any kind, for a period of sixty (60) consecutive
calendar days, (B) trading in the Common Stock shall not have been suspended
by
the Securities and Exchange Commission or the OTC Bulletin Board (or other
exchange or market on which the Common Stock is trading), (C) the Issuer
is in
material compliance with the terms and conditions of this Warrant and the
other
Transaction Documents (as defined in the Purchase Agreement) and (D) the
Issuer
is not in possession of any material non-public information; provided,
further, that the Registration Statement is in effect from the date
of
delivery of the Issuer Redemption Notice until the date which is the later
of
(1) the date the Holder exercises the Warrant pursuant to the Issuer Redemption
Notice and (2) the twentieth (20th) Trading
Day after
the Holder receives the Issuer Redemption Notice (the "Early Termination
Date"). The rights and privileges granted pursuant to this
Warrant with respect to the shares of Warrant Stock subject to the Issuer
Redemption Notice (the "Redeemed Warrant Shares") shall expire on the
Early Termination Date if this Warrant is not exercised with respect to such
Redeemed Warrant Shares prior to such Early Termination Date. The
Issuer's Redemption Notice shall state the date of redemption which date
shall
be the twenty-first (21st) Trading
Day after
the Issuer has delivered the Issuer's Redemption Notice (the "Issuer’s
Redemption Date"), the Issuer's Redemption Price and the number of shares to
be redeemed by the Issuer. The Issuer shall not send a Issuer's
Redemption Notice unless it has good and clear funds for a minimum of the
amount
it intends to redeem in a bank account controlled by the Issuer. The
Issuer shall deliver the Issuer's Redemption Price to the Holder on the Issuer’s
Redemption Date. Not later than five (5) days after receipt of the
Issuer Redemption Price, Holder shall return to the Issuer for cancellation
the
original Warrant to be redeemed. If the Issuer fails to pay the Issuer’s
Redemption Price by the Issuer’s Redemption Date, the redemption will be
declared null and void. Notwithstanding anything in the
foregoing to the contrary, if the Holder may not exercise this Warrant as
a
result of the restriction contained in Section 7 hereof, the Issuer Redemption
Notice shall be deemed null and void and shall not be deemed effective until
the
date that the Holder may exercise this Warrant in accordance with Section
7
hereof.
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9. Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
"Additional
Shares of Common
Stock" means all shares of Common Stock issued by the Issuer after the
Original Issue Date, and all shares of Other Common, if any, issued by the
Issuer after the Original Issue Date, except: (i) securities issued (other
than
for cash) in connection with a merger, acquisition, or consolidation, (ii)
securities issued pursuant to the conversion or exercise of convertible or
exercisable securities issued or outstanding on or prior to the date of the
Purchase Agreement or issued pursuant to the Purchase Agreement (so long
as the
conversion or exercise price in such securities are not amended to lower
such
price and/or adversely affect the Holders), (iii) the Warrant Stock, (iv)
securities issued in connection with bona fide strategic license agreements
or
other partnering arrangements so long as such issuances are not for the purpose
of raising capital, (v) Common Stock issued or the issuance or grants of
options
to purchase Common Stock pursuant to the Issuer’s stock option plans and
employee stock purchase plans outstanding as they exist on the date of the
Purchase Agreement, and (vi) any warrants issued to the placement agent and
its
designees for the transactions contemplated by the Purchase
Agreement.
"Articles
of Incorporation" means the Articles of Incorporation of the Issuer as in
effect on the Original Issue Date, and as hereafter from time to time amended,
modified, supplemented or restated in accordance with the terms hereof and
thereof and pursuant to applicable law.
“Board"
shall mean the Board of Directors of the Issuer.
"Capital
Stock" means and includes (i) any and all shares, interests, participations
or other equivalents of or interests in (however designated) corporate stock,
including, without limitation, shares of preferred or preference stock, (ii)
all
partnership interests (whether general or limited) in any Person which is
a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
"Common
Stock" means the Common Stock, $0.0001 par value per share, of the Issuer
and any other Capital Stock into which such stock may hereafter be
changed.
"Common
Stock Equivalent" means any Convertible Security or warrant, option or other
right to subscribe for or purchase any Additional Shares of Common Stock
or any
Convertible Security.
-14-
"Convertible
Securities" means evidences of Indebtedness, shares of Capital Stock or
other Securities which are or may be at any time convertible into or
exchangeable for Additional Shares of Common Stock. The term
"Convertible Security" means one of the Convertible Securities.
"Governmental
Authority" means any governmental, regulatory or self-regulatory entity,
department, body, official, authority, commission, board, agency or
instrumentality, whether federal, state or local, and whether domestic or
foreign.
"Holders"
mean the Persons who shall from time to time own any Warrant. The
term "Holder" means one of the Holders.
"Independent
Appraiser" means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial statements
of the Issuer) that is regularly engaged in the business of appraising the
Capital Stock or assets of corporations or other entities as going concerns,
and
which is not affiliated with either the Issuer or the Holder of any
Warrant.
"Issuer"
means Astrata Group Incorporated, a Nevada corporation, and its
successors.
"Majority
Holders" means at any time the Holders of Warrants exercisable for a
majority of the shares of Warrant Stock issuable under the Warrants at the
time
outstanding.
"Original
Issue Date" means December 19, 2007.
"OTC
Bulletin Board" means the
over-the-counter electronic bulletin board.
"Other
Common" means any other Capital Stock of the Issuer of any class which shall
be authorized at any time after the date of this Warrant (other than Common
Stock) and which shall have the right to participate in the distribution
of
earnings and assets of the Issuer without limitation as to amount.
“Outstanding
Common Stock”
means, at any given time, the aggregate amount of outstanding shares
of Common
Stock, assuming full exercise, conversion or exchange (as applicable) of
all
options, warrants and other Securities which are convertible into or exercisable
or exchangeable for, and any right to subscribe for, shares of Common Stock
that
are outstanding at such time.
"Person"
means an individual,
corporation, limited liability company, partnership, joint stock company,
trust,
unincorporated organization, joint venture, Governmental Authority or other
entity of whatever nature.
-15-
"Per
Share Market Value" means on any particular date (a) the last closing bid
price per share of the Common Stock on such date on the OTC Bulletin Board
or a
registered national stock exchange on which the Common Stock is then listed,
or
if there is no such price on such date, then the closing price on such exchange
or quotation system on the date nearest preceding such date, or (b) if the
Common Stock is not listed or traded then on the OTC Bulletin Board or any
registered national stock exchange, the last closing bid price for a share
of
Common Stock in the over-the-counter market, as reported by the OTC Bulletin
Board or by Pink Sheets LLC or similar organization or agency succeeding
to its
functions of reporting prices) at the close of business on such date, or
(c) if
the Common Stock is not then publicly traded the fair market value of a share
of
Common Stock as determined by an Independent Appraiser selected in good faith
by
the Majority Holders; provided, however, that the Issuer, after
receipt of the determination by such Independent Appraiser, shall have the
right
to select an additional Independent Appraiser, in which case, the fair market
value shall be equal to the average of the determinations by each such
Independent Appraiser; and provided, further that all
determinations of the Per Share Market Value shall be appropriately adjusted
for
any stock dividends, stock splits or other similar transactions during such
period. The determination of fair market value by an Independent
Appraiser shall be based upon the fair market value of the Issuer determined
on
a going concern basis as between a willing buyer and a willing seller and
taking
into account all relevant factors determinative of value, and shall be final
and
binding on all parties. In determining the fair market value of any
shares of Common Stock, no consideration shall be given to any restrictions
on
transfer of the Common Stock imposed by agreement or by federal or state
securities laws, or to the existence or absence of, or any limitations on,
voting rights.
"Purchase
Agreement" means the Series B Convertible Preferred Stock Purchase Agreement
dated as of December 19, 2007, among the Issuer and the Purchasers.
"Purchasers"
means the purchasers of the Series B Convertible Preferred Stock and the
Warrants issued by the Issuer pursuant to the Purchase Agreement.
"Securities"
means any debt or equity securities of the Issuer, whether now or hereafter
authorized, any instrument convertible into or exchangeable for Securities
or a
Security, and any option, warrant or other right to purchase or acquire any
Security. "Security" means one of the Securities.
"Securities
Act" means the Securities Act of 1933, as amended, or any similar federal
statute then in effect.
"Subsidiary"
means any corporation at least 50% of whose outstanding Voting Stock shall
at
the time be owned directly or indirectly by the Issuer or by one or more
of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Term"
has the meaning specified in Section 1 hereof.
"Trading
Day" means (a) a day on which the Common Stock is traded on the OTC Bulletin
Board or any other exchange or trading venue on which the Common Stock may
be
principally traded in the future, or (b) if the Common Stock is not traded
on
the OTC Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by Pink Sheets LLC (or any similar
organization or agency succeeding its functions of reporting prices);
provided, however, that in the event that the Common Stock is not
listed or quoted as set forth in (a) or (b) hereof, then Trading Day shall
mean
any day except Saturday, Sunday and any day which shall be a legal holiday
or a
day on which banking institutions in the State of New York are authorized
or
required by law or other government action to close.
-16-
"VWAP"
means, for any date, the price determined by the first of the following clauses
that applies: (a) the daily volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on the OTC Bulletin Board as
reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City
time) to 4:02 p.m. (New York City time); (b) if the Common Stock is not then
quoted for trading on the OTC Bulletin Board and if prices for the Common
Stock
are then reported by Pink Sheets, LLC (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price
per
share of the Common Stock so reported; or (c) in all other cases, the fair
market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the Majority Holders and reasonably
acceptable to the Issuer
"Voting
Stock" means, as applied to the Capital Stock of any corporation, Capital
Stock of any class or classes (however designated) having ordinary voting
power
for the election of a majority of the members of the Board of Directors (or
other governing body) of such corporation, other than Capital Stock having
such
power only by reason of the happening of a contingency.
"Warrants"
means the Warrants issued and sold pursuant to the Purchase Agreement,
including, without limitation, this Warrant, and any other warrants of like
tenor issued in substitution or exchange for any thereof pursuant to the
provisions of Section 2(c), 2(d) or 2(e) hereof or of any of such other
Warrants.
"Warrant
Price" initially means $1.75, as such price may be adjusted from time to
time as shall result from the adjustments specified in this Warrant, including
Section 4 hereto.
"Warrant
Share Number" means at any time the aggregate number of shares of Warrant
Stock which may at such time be purchased upon exercise of this Warrant,
after
giving effect to all prior adjustments and increases to such number made
or
required to be made under the terms hereof.
"Warrant
Stock" means Common Stock issuable upon exercise of any Warrant or Warrants
or otherwise issuable pursuant to any Warrant or Warrants.
10. Other
Notices. In case at any time:
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(A)
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the
Issuer shall make any distributions to the holders of Common Stock;
or
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(B)
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the
Issuer shall authorize the granting to all holders of its Common
Stock of
rights to subscribe for or purchase any shares of Capital Stock
of any
class or other rights; or
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(C)
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there
shall be any reclassification of the Capital Stock of the Issuer;
or
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(D)
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there
shall be any capital reorganization by the Issuer;
or
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(E)
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there
shall be any (i) consolidation or merger involving the Issuer or
(ii)
sale, transfer or other disposition of all or substantially all
of the
Issuer's property, assets or business (except a merger or other
reorganization in which the Issuer shall be the surviving corporation
and
its shares of Capital Stock shall continue to be outstanding and
unchanged
and except a consolidation, merger, sale, transfer or other disposition
involving a wholly-owned Subsidiary);
or
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(F)
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there
shall be a voluntary or involuntary dissolution, liquidation or
winding-up
of the Issuer or any partial liquidation of the Issuer or distribution
to
holders of Common Stock;
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then,
in
each of such cases, the Issuer shall give written notice to the Holder of
the
date on which (i) the books of the Issuer shall close or a record shall be
taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take
place. Such notice also shall specify the date as of which the
holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Common Stock for securities or other property deliverable
upon
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the action in question
and not less than ten (10) days prior to the record date or the date on which
the Issuer's transfer books are closed in respect thereto. This
Warrant entitles the Holder to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Common Stock.
11. Amendment
and Waiver. Any term, covenant, agreement or condition in this
Warrant may be amended, or compliance therewith may be waived (either generally
or in a particular instance and either retroactively or prospectively), by
a
written instrument or written instruments executed by the Issuer and the
Majority Holders; provided, however, that no such amendment or
waiver shall reduce the Warrant Share Number, increase the Warrant Price,
shorten the period during which this Warrant may be exercised or modify any
provision of this Section 11 without the consent of the Holder of this
Warrant. No consideration shall be offered or paid to any person to
amend or consent to a waiver or modification of any provision of this Warrant
unless the same consideration is also offered to all holders of the
Warrants.
-18-
12. Governing
Law; Jurisdiction. This Warrant shall be governed by and
construed in accordance with the internal laws of the State of New York,
without
giving effect to any of the conflicts of law principles which would result
in
the application of the substantive law of another jurisdiction. This
Warrant shall not be interpreted or construed with any presumption against
the
party causing this Warrant to be drafted. The Issuer and the Holder
agree that venue for any dispute arising under this Warrant will lie exclusively
in the state or federal courts located in New York County, New York, and
the
parties irrevocably waive any right to raise forum non conveniens or
any other argument that New York is not the proper venue. The Issuer
and the Holder irrevocably consent to personal jurisdiction in the state
and
federal courts of the state of New York. The Issuer and the Holder
consent to process being served in any such suit, action or proceeding by
mailing a copy thereof 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 in this
Section 12 shall affect or limit any right to serve process in any other
manner
permitted by law. The Issuer and the Holder hereby agree that the
prevailing party in any suit, action or proceeding arising out of or relating
to
this Warrant or the Purchase Agreement, shall be entitled to reimbursement
for
reasonable legal fees from the non-prevailing party. The parties
hereby waive all rights to a trial by jury.
13. Notices. Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy or facsimile at the address or number designated below
(if
delivered on a business day during normal business hours where such notice
is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or
upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
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If
to the Issuer:
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Astrata
Group Incorporated
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000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
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Xxxxx
Xxxx, XX 00000-0000
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Attention:
Chief Executive Officer
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Tel.
No.: (000) 000-0000
|
|
|
|
Fax
No.: (000) 000-0000
|
|
|
with
copies (which copies
|
||
|
shall
not constitute notice)
|
||
|
to:
|
Xxxxxx
& Xxxxxx, LLP
|
|
|
000
Xxxxx 0 Xxxxx, Xxxxx 000
|
||
|
Xxxxxxxxx,
Xxx Xxxxxx 00000
|
||
|
Attention:
Xxxxxxx X. Xxxxxx, Esq.
|
||
|
Tel.
No.: (000) 000-0000
|
||
|
Fax
No.: (000) 000-0000
|
||
|
If
to any Holder:
|
At
the address of such Holder set forth on Exhibit A to this Agreement,
with
copies to Holder’s counsel as set forth on Exhibit A or as specified in
writing by such Holder with copies
to:
|
-19-
|
with
copies (which copies
|
||
|
shall
not constitute notice)
|
||
|
to:
|
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
|
|
|
0000
Xxxxxx xx xxx Xxxxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attention:
Xxxxxxxxxxx X. Xxxxxxx
|
||
|
Tel.
No.: (000) 000-0000
|
||
|
Fax
No.: (000) 000-0000
|
Any
party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
14. Warrant
Agent. The Issuer may, by written notice to each Holder of this
Warrant, appoint an agent having an office in New York, New York for the
purpose
of issuing shares of Warrant Stock on the exercise of this Warrant pursuant
to
subsection (b) of Section 2 hereof, exchanging this Warrant pursuant to
subsection (d) of Section 2 hereof or replacing this Warrant pursuant to
subsection (d) of Section 3 hereof, or any of the foregoing, and thereafter
any
such issuance, exchange or replacement, as the case may be, shall be made
at
such office by such agent.
15. Remedies. The
Issuer stipulates that the remedies at law of the Holder of this Warrant
in the
event of any default or threatened default by the Issuer in the performance
of
or compliance with any of the terms of this Warrant are not and will not
be
adequate and that, to the fullest extent permitted by law, such terms may
be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
16. Successors
and Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of
the
Issuer, the Holder hereof and (to the extent provided herein) the Holders
of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
17. Modification
and Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision
hereof is found to be unenforceable, then such provision shall be deemed
modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect
the
other provisions of this Warrant, but this Warrant shall be construed as
if such
unenforceable provision had never been contained herein.
18. Headings. The
headings of the Sections of this Warrant are for convenience of reference
only
and shall not, for any purpose, be deemed a part of this Warrant.
19. Registration
Rights. The Holder of this Warrant is entitled to the benefit of
certain registration rights with respect to the shares of Warrant Stock issuable
upon the exercise of this Warrant pursuant to that certain Series J Warrant
issued to the Holder on the date hereof.
[SIGNATURE
PAGE FOLLOWS]
-20-
IN
WITNESS WHEREOF, the Issuer has executed this Series D Warrant as of the
day and year first above written.
| ASTRATA GROUP INCORPORATED | |||
|
|
By:
|
||
| Name: Xxxxxx Xxxxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
-21-
EXERCISE
FORM
SERIES D
WARRANT
ASTRATA
GROUP INCORPORATED
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Astrata Group
Incorporated covered by the within Warrant.
|
Dated:
_________________
|
Signature
___________________________
|
|
|
Address_____________________
|
||
|
_____________________
|
Number
of
shares of Common Stock beneficially owned or deemed beneficially owned
by the
Holder on the date of Exercise: _________________________
The
undersigned is an “accredited investor” as defined in Regulation D under the
Securities Act of 1933, as amended.
The
undersigned intends that payment of the Warrant Price shall be made as
(check
one):
Cash
Exercise_______
Cashless
Exercise_______
If
the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $________
by
certified or official bank check (or via wire transfer) to the Issuer in
accordance with the terms of the Warrant.
If
the
Holder has elected a Cashless Exercise, a certificate shall be issued to
the
Holder for the number of shares equal to the whole number portion of the
product
of the calculation set forth below, which is ___________. The
Company shall pay a cash adjustment in respect of the fractional portion
of the
product of the calculation set forth below in an amount equal to the product
of
the fractional portion of such product and the Per Share Market Value on
the
date of exercise, which product is ____________.
X
= Y -
(A)(Y)
B
Where:
The
number of Ordinary Shares to be issued to the Holder
__________________(“X”).
The
number of Ordinary Shares purchasable upon exercise of all of the Warrant
or, if
only a portion of the Warrant is being exercised, the portion of the Warrant
being exercised ___________________________ (“Y”).
-22-
The
Warrant Price ______________ (“A”).
The
Per
Share Market Value of one Ordinary Share _______________________
(“B”).
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby
and does
irrevocably constitute and appoint _____________, attorney, to transfer
the said
Warrant on the books of the within named corporation.
|
Dated:
_________________
|
Signature
___________________________
|
|
|
Address_____________________
|
||
|
_____________________
|
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
|
Dated:
_________________
|
Signature
___________________________
|
|
|
Address_____________________
|
||
|
_____________________
|
FOR
USE
BY THE ISSUER ONLY:
This
Warrant No. W-___ canceled (or transferred or exchanged) this _____ day
of
___________, _____, shares of Common Stock issued therefor in the name
of
_______________, Warrant No. W-_____ issued for ____ shares of Common Stock
in
the name of _______________.
-23-
