Item 6 Attachment 10.4 Repayment of Debt and Resolution of all Outstanding
Liabilities with Xxxxxxx Xxxxxxxxx, dated as of April 30, 2007
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of April 30,
2007 (the "Effective Date"), is entered into by and between CDEX Inc., a Nevada
corporation (the "Company"), and Xxxxxxx Xxxxxxxxx (the "Investor").
Recitals and Agreement:
In 2006, the Investor loaned the Company a total of $180,000 with rapid
repayment terms. The Company was unable to meet those payment terms and interest
and penalties accrued, including verbal commitments of the Company related to
the loan. Investor and the Company negotiated a resolution of that debt and all
associated liability. The resolution was for a payment of $260,000 as full and
complete settlement for any and all claims of any type that Investor has against
the Company or its past or present Officers, Directors, Affiliates, vendors,
shareholders, employees or consultants (including but not limited to outstanding
obligations, loans, penalties, interest, and verbal agreements). It was agreed
in the Settlement Agreement dated April 30, 2007, that payment of the settlement
amount would be made through this Subscription Agreement whereas the Company
accepted this settlement of $260,000 as funds for purchase of 2,363,636 shares
of CDEX restricted Class A Common stock ("Common Stock") and a 200% thirty month
warrant for the same number of shares. NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, the receipt and sufficiency of
which are agreed upon by the parties, the parties hereto hereby agree as
follows:
SECTION 1. Purchases and Sales of Common Stock.
-----------------------------------
(a) Upon the terms and subject to the conditions set forth herein, the
Company shall sell to the Investor, and the Investor irrevocably agrees to
purchase from the Company, an aggregate of 2,363,636 shares of Class A Common
Stock (sometimes referred to as the "Purchased Shares") for a total price of Two
Hundred Sixty Thousand Dollars ($260,000.00) ("Purchased Price").
(b) The Purchased Price has been received by the Company on or before
April 30, 2007. After execution of this Agreement, the Company shall issue to
the Investor in a timely manner a certificate for the Purchased Shares
(restricted Class A Common Stock of the Company).
(c) The Investor's obligation shall be conditioned upon all of the
representations and warranties of the Company set forth in this Agreement being
true and correct as of the Effective Date. The Company's obligation shall be
conditioned upon all of the representations and warranties of the Investor set
forth in this Agreement being true and correct as of the Effective Date.
(d) The Company will issue to Investor a warrant to purchase shares of
CDEX restricted Class A Common Stock at a price that is equal to 200% of the
Purchase Price in the form attached hereto as Exhibit A (the "Warrant"). The
number of additional shares that Investor may purchase pursuant to the warrant
shall be equal to the number of the "Purchased Shares." The warrant is
exercisable, subject to SEC Rule 144 and 144(K), within thirty (30) months of
the Effective Date of this Agreement,
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SECTION 2. Representations and Warranties of the Company
---------------------------------------------
The Company hereby represents and warrants to the Investor, as of the
date of this Agreement, as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and has all
requisite corporate power and authority to own and lease its property and to
carry on its business as presently conducted.
(b) Authorization of Agreement and Issuance of the Purchased Shares;
Enforceability; Non-Contravention. The execution, delivery and performance by
the Company of this Agreement and issuance of the Purchased Shares have been
duly authorized by all requisite action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable in accordance with its
respective terms. The execution, delivery and performance of this Agreement, and
the compliance with the provisions hereof and thereof by the Company, will not:
(i) materially violate any provision of law, statute,
ordinance, rule or regulation or any ruling, writ, injunction, order, judgment
or decree of any court, administrative agency or other governmental body;
(ii) materially conflict with or result in any material breach
of any of the terms, conditions or provisions of, or constitute (with due notice
or lapse of time, or both) a material default (or give rise to any right of
termination, cancellation or acceleration) under (A) any agreement, document,
instrument, contract, understanding, arrangement, note, indenture, mortgage or
lease to which the Company is a party or under which the Company or any of its
assets is bound or affected, (B) the Company's Certificate of Incorporation, or
(C) the Company's By-laws; or
(iii) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Company.
(c) Consents and Approvals. No authorization, consent, approval or
other order of, or declaration to or filing with, any governmental agency or
body (other than filings required to be made under applicable federal and state
securities laws) is required for the valid authorization, execution, delivery
and performance by the Company of this Agreement or the issuance of the
Purchased Shares that has not been obtained or made. The Company has obtained
all other consents that are necessary to permit the consummation of the
transactions contemplated hereby.
(d) Securities Laws. Based on the representations of the Investor set
forth in Section 3 of this Agreement, the offer, sale and issuance of the
Purchased Shares to the Investor hereunder will not be in violation of the
registration requirements of the United States Securities Act of 1933, as
amended (the "Securities Act").
(e) Reporting Status. The Company has filed in a timely manner all
documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the twelve (12) months
preceding the date of this Agreement (collectively, the "SEC Documents"). The
SEC Documents complied in all material respects with the SEC's requirements as
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of their respective filing dates, and the information contained therein as of
the date thereof, to its management's knowledge did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except to the extent
that information contained in any such document has been revised or superseded
by a later filed SEC Document or that revenue received may be reclassified as
deferred revenue received.
(f) Capitalization. The number and class of the authorized and issued
shares of capital stock of the Company are as disclosed in the SEC Documents, as
of the date of each of such SEC Documents, respectively. All outstanding shares
of Common Stock are duly authorized, validly issued, fully paid and
nonassessable, free from any liens or any other encumbrances created by the
Company with respect to the issuance and delivery thereof and not subject to
preemptive rights. The Purchased Shares have been duly authorized, and when
issued and paid for in accordance with the terms of the Agreements will be duly
and validly issued, fully paid and nonassessable, free and clear of all pledges,
liens, encumbrances and other restrictions (other than those arising under
federal or state securities laws as a result of the private placement of the
Purchased Shares to the Investor). No preemptive right, co-sale right, right of
first refusal or other similar right exists with respect to the Purchased Shares
or the issuance and sale thereof. The issuance and sale of the Purchased Shares
will not obligate the Company to issue shares of Common Stock or other
securities to any person and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under
such securities. No further approval or authorization of any stockholder or the
Board of Directors of the Company or others is required for the issuance and
sale of the Purchased Shares.
(g) Trading. The Company's Common Stock is traded on the
Over-the-Counter Bulletin Board ("OTC BB") and satisfies all requirements for
the continuation of such trading. The Company has not received any notice that
its Common Stock will not be eligible to trade on the OTCBB or that its Common
Stock does not meet all requirements for the continuation of such trading.
(h) Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the best knowledge of the Company, threatened to which
the Company or any of its officers or directors in their capacity as such
officer or director is or may be a party or of which the business or property of
the Company is subject that is not disclosed in the SEC Documents. There is no
action, suit, proceeding, inquiry or investigation before or by any court,
public board or body (including, without limitation, the SEC) pending or, to the
best knowledge of the Company, threatened against or affecting the Company or
any of its officers or directors in their capacity as such wherein an
unfavorable decision, ruling or finding could adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under the Agreements or which otherwise would be reasonably likely
to have a material adverse effect on the financial condition of the business,
operations, assets or prospects of the Company. The SEC has not issued any stop
order or other order suspending the effectiveness of any registration statement
filed by the Company under the Exchange Act or the Securities Act.
(i) Governmental Permits, Etc. To its management's knowledge, the
Company possesses all necessary franchises, licenses, certificates and other
authorizations from any foreign, federal, state or local government or
governmental agency, department, or body that are currently necessary for the
operation of its business as currently conducted, except where the failure to
currently possess could not reasonably be expected to have a material adverse
effect upon the financial condition or business, operations, assets or prospects
of the Company. The Company has not received any notice of proceedings relating
to the revocation or modification of any such license, certificate,
authorization or permit that, if determined adversely to the Company, would have
a material adverse effect upon the financial condition or business, operations,
assets or prospects of the Company.
(j) Intellectual Property. To management's knowledge, as described in
associated SEC documents, the Company owns or possesses sufficient rights to use
all patents, patent rights, trademarks, copyrights, licenses, inventions, trade
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secrets, trade names and know-how (collectively, "Intellectual Property") that
are necessary for the conduct of its business as now conducted, except where the
failure to currently own or possess would not have a material adverse effect on
the financial condition or business of the Company.
SECTION 3. Representations and Warranties of the Investor to
the Company.
-----------------------------------------------------------
The Investor represents and warrants to the Company, as of the date of
this Agreement, as follows:
(a) The execution, delivery and performance by the Investor of this
Agreement and issuance of the Purchased Shares have been duly authorized by all
requisite action on the part of the Investor. This Agreement has been duly
executed and delivered by the Investor and constitutes a valid and binding
obligation of the Investor, enforceable in accordance with its respective terms.
The execution, delivery and performance of this Agreement, and the compliance
with the provisions hereof and thereof by the Investor, will not:
(i) materially violate any provision of law, statute,
ordinance, rule or regulation or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other
governmental body;
(ii) materially conflict with or result in any materal breach
of any of the terms, conditions or provisions of, or constitute (with
due notice or lapse of time, or both) a material default (or give rise
to any right of termination, cancellation or acceleration) under any
agreement, document, instrument, contract, understanding, arrangement,
note, indenture, mortgage or lease to which the Investor is a party or
under which the Investor or any of its assets are bound or affected or
conflict with any organizational or other governing document of the
Investor; or
(iii) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the
Investor.
(b) The Investor understands and acknowledges that the offering and
sale of the Purchased Shares pursuant to this Agreement is intended to be exempt
from registration under the Securities Act, and from qualification under any
applicable state securities law by virtue of Section 4(2) of the Securities Act
and Rule 506 of Regulation D thereunder, on the ground, among others, that no
distribution or public offering of Purchased Shares is to be effected and the
Purchased Shares will be issued by the Company in connection with a transaction
that does not involve any public offering within the meaning of Section 4(2) of
the Securities Act, the rules and regulations of the United States Securities
and Exchange Commission thereunder, or any comparable provision of applicable
securities laws or the rules and regulations of the regulatory authorities
thereunder.
(c) The Investor will acquire the Purchased Shares for investment for
the account of the Investor and not for the account of any other person, and not
with a view toward resale or other distribution thereof. The Investor
understands that the Purchased Shares have not been registered under the
Securities Act and applicable United States state securities laws and,
therefore, cannot be resold unless they are subsequently registered under the
Securities Act and applicable United States state securities laws or unless an
exemption from such registration is available. The Investor further understands
and agrees that, until so registered or transferred pursuant to the provisions
of Rule 144 under the Securities Act, the certificate(s) for the Purchased
Shares shall bear a legend, prominently stamped or printed thereon, reading
substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO THEIR DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED, OR
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OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
(d) The Investor, during the course of this transaction and prior to
the purchase of the Purchased Shares, has had the opportunity to ask questions
of and receive answers from representatives of the Company concerning the terms
and conditions of the offering, and to obtain any additional information or
documents relative to the Company, its business and an investment, as the
Investor has deemed necessary. The Investor agrees and acknowledges, however,
that it has not been furnished any offering literature or prospectus concerning
the Company other than this Agreement and, in making its decision to acquire the
Purchased Shares hereunder, the Investor has relied solely upon this Agreement
and independent investigations made by the Investor. The Investor acknowledges
that no representations or warranties have been made to the Investor by the
Company, or any officer, employee, agent or affiliate of the Company, except as
contained in this Agreement.
(e) The Investor understands that the offering of Purchased Shares
pursuant to this Agreement is limited solely to "accredited investors," as that
term is defined in Regulation D under the Securities Act. The Investor
represents and warrants to the Company that the Investor is an "accredited
investor", as so defined, by virtue of the Investor meeting the criteria checked
by the Investor on the signature page hereto, and that the Investor's principal
place of business is as listed on the signature page hereto.
(f) The Investor has the capacity to protect its own interests in
connection with the purchase of the Purchased Shares. The purchase of the
Purchased Shares by the Investor is consistent with its general investment
objectives and the Investor understands that the purchase of the Purchased
Shares is a speculative investment that involves a high degree of risk. The
Investor can bear the economic risks of this investment and can afford a
complete loss of its investment in the Purchased Shares. The Investor
understands that the established market for the Company's capital stock is
volatile and the stock may be thinly traded.
(g) The Investor understands and acknowledges that the Purchased Shares
are "restricted securities" under United States securities laws and any
purported transfer of the Purchased Shares in violation of applicable law is
null and void. The Investor understands and acknowledges that the Company may,
at its discretion, refuse to register on its share transfer books any purported
transferee of the Purchased Shares in the event of an attempted transfer thereof
in violation of applicable law.
SECTION 4. Indemnification. The Investor agrees to indemnify and hold
harmless the Company and its affiliates from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expenses reasonably incurred in investigating, preparing or
defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon: (a) any false representation and
warranty of the Investor contained in this Agreement or any breach or failure by
the Investor to comply with any covenant and/or agreement made by the Investor
herein; or (b) any transfer of the Purchased Shares contrary to such
representations and warranties or covenants and agreements.
SECTION 5. Termination. Either party may terminate this Agreement upon
material breach of this Agreement by the other party that has not been cured in
its entirety within five (5) business days after written notice thereof has been
provided to the breaching party. The parties agree that a party's failure to pay
the Purchase Price or Provide the Purchase Shares in accordance with the terms
and conditions of this Agreement constitute a material breach by such party of
this Agreement.
SECTION 6. General Provisions.
------------------
(a) Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party entitled to the benefit of such covenants or agreements may
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proceed to protect and enforce their rights either by suit in equity and/or
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Agreement. The rights, powers and
remedies of the parties under this Agreement are cumulative and not exclusive of
any other right, power or remedy which such parties may have under any other
agreement or law. No single or partial assertion or exercise of any right, power
or remedy of a party hereunder shall preclude any other or further assertion or
exercise thereof.
(b) Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of the Company and
the Investor and their respective permitted successors and assigns. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
(c) Entire Agreement. This Agreement (including any schedules and
exhibits hereto) contains the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior and contemporaneous
arrangements or understandings, whether written or oral, with respect thereto.
(d) Changes. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to a writing executed by duly authorized
representatives of the Company and the Investor.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts each of
which, when so executed and delivered, shall be an original but all of which
together shall constitute one and the same instrument.
(f) Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(g) Governing Law; Venue; Jurisdiction. The corporate law of the State
of Nevada will govern all questions concerning the relative rights of the
Company and the holders of its securities (including, without limitation, the
Purchased Shares). All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Arizona, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Arizona or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Arizona. The parties each agree that
venue for any dispute arising under this Agreement shall be proper in any state
court located in the State of Arizona or in the United States District Court for
Arizona (if a basis for federal jurisdiction exists) and each party hereby
irrevocably waives any right to object to the maintenance of a suit in such
courts on the basis of improper venue or of inconvenience of forum. Each party
irrevocably consents to the non-exclusive jurisdiction of any state court
located in the State of Arizona or in the United States District Court for
Arizona (if a basis for federal jurisdiction exists).
(h) Waiver of Jury Trial. The parties to this Agreement each hereby
irrevocably waives, to the fullest extent permitted by law, any right to trial
by jury of any claim, demand, action or cause of action arising under this
Agreement, whether now existing or hereafter arising, and whether in contract,
tort, equity, or otherwise. The parties to this Agreement each hereby
irrevocably agrees and consents that any such claim, demand, action or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
The Investor : The Company:
[See Attached Signature Page] CDEX INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
Address:
CDEX Inc.
0000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
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SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT
By execution of this Signature Page, the Investor agrees to be bound by the
provisions of this Agreement and authorizes the Company to append this Signature
Page to a counterpart of the Agreement as evidence thereof. Pursuant to Section
3(e) of the Agreement, the undersigned represents and warrants that the Investor
is an "accredited investor" (as such term is defined in Regulation D under the
Securities Act) by reason of the qualifications described opposite the checked
box(es) set forth below.
Xxxxxxx Xxxxxxxxx
By: ________________________________
Mailing Address:
Telephone No:
The Investor is an "accredited investor" by virtue of the Investor being:
X (1) a natural person (not an entity) whose individual net worth, or
------ joint net worth with his or her spouse, exceeds one million dollars
($1,000,000);
------ (2) a natural person (not an entity) who had individual income in
excess of two hundred thousand dollars ($200,000) in each of 2003 and
2004 and has a reasonable expectation of having individual income in
excess of two hundred thousand dollars ($200,000) in 2005;
------ (3) a natural person (not an entity) who had joint income with his or
her spouse in excess of three hundred thousand dollars ($300,000) in
each of 2003 and 2004 and has a reasonable expectation of having a
joint income with his or her spouse in excess of three hundred thousand
dollars ($300,000) in 2005;
------ (4) a trust, with total assets in excess of five million dollars
($5,000,000), not formed for the specific purpose of acquiring the
Purchased Shares, which is directed by a person who has such knowledge
and experience in financial and business matters that he or she is
capable of evaluating the merits and risks of an investment in Company;
------ (5) a corporation, Massachusetts or similar business trust, or a
partnership, each with total assets in excess of five million dollars
($5,000,000), which was not formed for the specific purpose of
acquiring the Purchased Shares; or
------ (6) any entity in which all of the equity owners meet at least one of
the criteria set forth in categories (1) through (5), above.
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Exhibit A to Securities Purchase Agreement
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY OTHER APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY BE
SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE
SECURITIES ACT OR ANY APPLICABLE STATE LAWS.
COMMON STOCK PURCHASE WARRANT
To Purchase XXXXXXXX Shares of Common Stock of
CDEX, INC.
THIS CERTIFIES that, for value received, XXXXXXXXXXXX or its
assignee (the "Holder"), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on
or after XXXX (the "Initial Exercise Date") and on or prior to the close of
business thirty (30) months from the Initial Exercise Date (the "Termination
Date") but not thereafter, to subscribe for and purchase from CDEX, Inc., a
Nevada corporation (the "Company"), XXXXXX shares of Common Stock, par value
$0.005, of the Company (the "Common Stock" or "Warrant Shares"). The purchase
price of each share of Common Stock upon the exercise of this Warrant shall be
$XXXXX, an amount equal to _____% of the per share price of the Purchased Shares
(the "Exercise Price"). The number of shares of Common Stock for which this
Warrant is exercisable shall be subject to adjustment as provided herein.
1. Title to Warrant. Prior to the Termination Date and subject
to compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with a properly endorsed and/or duly executed Assignment Form,
a copy of which is annexed hereto.
2. Authorization of Shares of Common Stock. The Company
covenants that all securities which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights represented by
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with
such issue).
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3. Exercise of Warrant. Except as provided in Section 4
herein, exercise of the purchase rights represented by this Warrant may be made
at any time or times on or after the Initial Exercise Date, and before the close
of business on the Termination Date by the surrender of this Warrant and the
Notice of Exercise Form annexed hereto duly executed, at the office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered holder hereof at the address of such holder
appearing on the books of the Company) and upon payment of the Exercise Price
for the shares of Common Stock thereby purchased by wire transfer or cashier's
check drawn on a United States bank, the Holder of this Warrant shall be
entitled to receive a certificate for the number of shares of Common Stock so
purchased. Certificates for the securities representing the shares of Common
Stock purchased hereunder shall be delivered to the Holder hereof as soon as
practicable after the date on which this Warrant shall have been duly exercised.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a holder of
record of such securities for all purposes, as of the date this Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes required
to be paid by Holder, if any, pursuant to Section 4 hereof, prior to the
issuance of such securities.
4. Charges, Taxes and Expenses. Issuance of certificates for
shares of Common Stock and/or the securities representing the shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in respect of
the issuance of such certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in the name of the Holder
of this Warrant or in such name or names as may be directed by the Holder of
this Warrant; provided, however, that in the event certificates for shares of
Common Stock are to be issued in a name other than the name of the Holder of
this Warrant, this Warrant when surrendered for exercise shall be accompanied by
the Assignment Form attached hereto duly executed by the Holder hereof, and the
Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
5. Closing of Books. The Company will not close its books or
records in any manner which prevents the timely exercise of this Warrant.
6. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws,
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company, together with
a written assignment of this Warrant substantially in the form attached hereto
duly executed by Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new
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Warrant or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment, and
shall issue to the assignor a new Warrant evidencing the portion of this Warrant
not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new Holder for the purchase of shares
of Common Stock without having a new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by Holder or his agent or attorney.
Subject to compliance with Section 6(a) hereof, as to any transfer which may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 6.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the Warrants.
7. No Rights as Shareholder until Exercise. This Warrant does
not entitle the Holder hereof to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the surrender of
this Warrant and the payment of the Exercise Price, the shares of Common Stock
so purchased shall be deemed to be issued to such Holder as the record owner of
such securities as of the close of business on the later of the date of such
surrender or payment.
8. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
certificate or any certificate relating to the shares of Common Stock and in
case of loss, theft or destruction, of indemnity or security satisfactory to it,
and upon surrender and cancellation of such Warrant or certificate, if
mutilated, the Company will make and deliver a new Warrant or certificate of
like tenor and dated as of such cancellation, in lieu of such Warrant or
certificate.
9. Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised until 5:00 P.M. New York Time on the
next succeeding day not a Saturday, Sunday or legal holiday.
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10. Adjustments of Exercise Price and Number of Warrant
Shares, Share Splits, etc. The number and kind of securities purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time as set forth in this Section 10. In the event that
the Company shall (i) pay a dividend in shares of its common stock or make a
distribution of its common stock to holders of its outstanding common stock (ii)
subdivide its outstanding common stock into a greater number of shares of its
common stock; (iii) combine its outstanding common stock into a smaller number
of its common stock; or (iv) issue any common stock in a reclassification of its
common stock, then the number of shares of common stock purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted so that the
Holder of this Warrant shall be entitled to receive the kind and number of
common stock of the Company which it would have owned or have been entitled to
receive had such Warrant been exercised in advance thereof. Upon each such
adjustment, the Holder of this Warrant shall thereafter be entitled to purchase
the number of shares of common stock resulting from such adjustment at an
Exercise Price per share of Common Stock obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the number of shares of common stock of the
Company resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
11. Merger, Consolidation or Disposition of Assets. In case
the Company shall consolidate or merge with or into another company (where the
Company is not the surviving company or where there is a change in or
distribution with respect to the shares of Common Stock of the Company), or
sell, transfer or otherwise dispose of all or substantially all of its property,
assets or business to another company and, pursuant to the terms of such merger,
consolidation or disposition of assets, capital securities of the successor or
acquiring company, or any cash, shares of stock or other securities are to be
received by or distributed to the holders of securities of the Company, then the
Company shall use its best efforts to obtain for the Holder the right thereafter
to receive, upon exercise of this Warrant, the number of shares of common stock
or other securities of the successor or acquiring company or of the Company, if
it is the surviving company, receivable upon or as a result of such, merger,
consolidation or disposition of assets which the Holder would have received if
it had held the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such event.
12. Voluntary Adjustment by the Company. The Company may at
any time during the term of this Warrant, reduce the then current Exercise Price
to any amount and for any period of time deemed appropriate by the Board of
Directors of the Company.
13. Notice of Adjustment. Whenever the number of shares of
Common Stock or number or kind of securities or other property purchasable upon
the exercise of this Warrant or the Exercise Price is adjusted, as herein
provided, the Company shall promptly mail by registered or certified mail,
return receipt requested, to the Holder of this Warrant notice of such
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adjustment or adjustments setting forth the number of shares of Common Stock
(and other securities or property) purchasable upon the exercise of this Warrant
and the Exercise Price of such shares of Common Stock (and other securities or
property) after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which such
adjustment was made. Such notice, in the absence of manifest error, shall be
conclusive evidence of the correctness of such adjustment.
14. Authorized Securities. The Company covenants that during
the period this Warrant is outstanding, it will use its best efforts to reserve
from its authorized and unissued shares of Common Stock a sufficient number of
shares of Common Stock to provide for the issuance of the shares of Common Stock
upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to
its officers who are charged with the duty of executing certificates to execute
and issue the necessary certificates for the shares of Common Stock upon the
exercise of the purchase rights under this Warrant.
15. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of Arizona, without regard to its conflict of law, principles or
rules, and be subject to arbitration in the State of Arizona pursuant to the
rules of the American Arbitration Association.
(b) Restrictions. The Holder hereof acknowledges that the
securities acquired upon the exercise of this Warrant, if not registered, will
have restrictions upon resale imposed by state and federal securities laws.
(c) Non-waiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice Holder's rights, powers or
remedies, notwithstanding all rights hereunder terminate on the Termination
Date. If the Company willfully fails to comply with any provision of this
Warrant, the Company shall pay to Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable
attorneys' fees, including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder hereof by the Company shall be
delivered to the last address of the Holder appearing on the books of the
Company.
(e) Limitation of Liability. No provision hereof, in the
absence of affirmative action by Holder to purchase securities, and no
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enumeration herein of the rights or privileges of Holder hereof, shall give rise
to any liability of Holder for the purchase price of any securities or as a
holder of securities or shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Warrant.
(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby shall inure
to the benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder or any other holder of the
securities underlying the Warrant.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
CDEX, INC.
By:
_______________________
Name: Xxx Xxxxxxx
Title: President & CEO
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NOTICE OF EXERCISE
To: CDEX, INC.
(b) The undersigned hereby elects to purchase ________ shares
of Common Stock of CDEX, Inc. pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(c) Please issue a certificate or certificates representing
said shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
Dated:
------------------------------
Signature
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ASSIGNMENT FORM
(To assign the foregoing warrant, execute this form and supply required
information. Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
_______________________________________________ whose address is
___________________________________________________________________.
___________________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of the Company and those acting in an fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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