Contract
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
DOLCE
VENTURES INC.
Expires
September 7, 2011
|
No.:
W-D-06-04
|
Number
of Shares:
|
|
Date
of Issuance: September 7, 2006
|
FOR
VALUE
RECEIVED, subject to the provisions hereinafter set forth, the undersigned,
Dolce Ventures, Inc., a Utah corporation (together with its successors and
assigns, the "Issuer"),
hereby certifies that or
its
registered assigns (the “Holder”)
is
entitled to subscribe for and purchase, during the Term (as hereinafter
defined), up to Eighty One Thousand Nine Hundred Twenty Seven (81,927)
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 on the terms and
conditions hereinafter set forth. The number of shares of Common Stock issuable
upon exercise of this Warrant reflects the number of shares of Common Stock
to
which the Holder is entitled following the 1-for-304.4444 reverse stock split
to
be effected by the Issuer following the Original Issue Date (the “Reverse
Stock Split”).
Capitalized terms used in this Warrant and not otherwise defined herein shall
have the respective meanings specified in Section 8 hereof.
1. Term.
The
term of this Warrant shall commence on September 7, 2006 and shall expire at
6:00 p.m., eastern time, on September 7, 2011 (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 for such number of shares of Common 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 as Exhibit
A
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 Xxxxxx'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 one (1)
year 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, 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 the rights represented by 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),
issued and delivered to the Depository 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. The Holder
shall deliver this original Warrant, or an indemnification 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.
-2-
(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, and the rights evidenced hereby, 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 Xxxxxx.
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 and removal
as
the Issuer may reasonably request. Such proposed transfer and removal 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, or (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. 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 (provided
that a registration statement under the Securities Act providing for the resale
of the Warrant Stock is then in effect),
the
Issuer shall cause its transfer agent to electronically transmit the Warrant
Stock to the Holder by crediting the account of the Holder's Prime Broker with
DTC through its DWAC system.
(i) Accredited
Investor.
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.
-5-
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 percent (100%)
of
the number of shares of Common Stock issuable upon exercise of this Warrant
without regard to any limitations on exercise.
(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.
-6-
(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.
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, other than any event set forth in Section 4(b) below, then,
and
in the case of each such Triggering Event, proper provision shall be made 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
in effect at the time immediately prior to 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 an amount in cash equal to the value
of this Warrant calculated in accordance with the Black-Scholes formula.
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)
Notwithstanding anything contained in this Warrant to the contrary and 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,
a
Triggering Event shall not be deemed to have occurred if, prior to the
consummation thereof, 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 such Person shall have similarly
delivered to such Holder an opinion of counsel for 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 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(other than in connection with the dividend payable in
shares of Common Stock to be issued by the Issuer to the Issuer’s stockholders
in connection with the spin-off of the Issuer’s wholly-owned subsidiary, Pegasus
Tel, Inc.),
(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
(other
than pursuant to the Reverse Split),
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.
-8-
(c) Certain
Other Distributions.
If at
any time the Issuer shall make or issue or set a record date for the
determination of the holders of the Common Stock for the purpose of entitling
them to receive any dividend or other distribution of:
(i) cash
(other than a cash dividend payable out of earnings or earned surplus legally
available for the payment of dividends under the laws of the jurisdiction of
incorporation of the Issuer),
(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 of recognized
national standing acceptable to (but not affiliated with) 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 within the two (2) year period 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 $2.74 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 within the two (2) year period 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 $2.74 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 $2.74
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 and acceptable to the Holder, 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 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.
-10-
(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.
-11-
(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 an Independent Appraiser reasonably acceptable to the
Issuer and the Holder. The Issuer shall use its best efforts to cause the
Independent Appraiser to perform the calculations and notify the Issuer and
the
Holder of the results no later than five (5) business days from the time it
receives the disputed calculation. Such Independent Appraiser’s calculation
shall be binding upon all parties absent manifest error. The reasonable expenses
of the Independent Appraiser in making such determination shall be paid by
the
Issuer, in the event the Holder's calculation was correct, or by the Holder,
in
the event the Issuer’s calculation was correct, or equally by the Issuer and the
Holder in the event that neither the Issuer's or the Holder's calculation was
correct.
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 at such
time, the number of shares of Common Stock which would result in such Holder
beneficially owning (as determined in accordance with Section 13(d) of the
Exchange Act and the rules thereunder) in excess of 9.9% 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 12 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
this provision shall be of no further force or effect during the sixty-one
(61)
days immediately preceding the expiration of the term of this
Warrant.
-12-
8. 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 pursuant to a bona fide firm
underwritten public offering of the Issuer’s securities, (ii) securities issued
pursuant to the conversion or exercise of convertible or exercisable securities
issued or outstanding on or prior to the Original Issue Date 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 (other than for cash)
in connection with an acquisition of the Issuer, (v) any warrants issued to
the
placement agent for the transactions contemplated by the Purchase Agreement,
(vi) securities issued in connection with strategic license agreements and
other
partnering arrangements so long as such issuances are not for the purpose of
raising capital and the Issuer has received the prior written consent of the
Holder, and (vii) the issuance of Common Stock or the issuance or grants of
options to purchase Common Stock pursuant to the Issuer's stock option plans
and
employee stock purchase plans and which have been approved by the Issuer’s Board
of Directors so long as such issuances in the aggregate do not exceed ten
percent (10%) of the Issuer’s issued and outstanding Common Stock as of the
Original Issue Date.
"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, par value $.001 per share, of the Issuer and any other Capital
Stock into which such stock may hereafter be changed.
-13-
"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.
"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
Dolce Ventures Inc., a Utah 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
September 7, 2006.
"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.
-14-
"Per
Share Market Value"
means
on any particular date (a) the last closing price per share of the Common Stock
on such date on the OTC
Bulletin Board or
another registered national stock exchange on which the Common Stock is then
listed, or if there is no closing price on such date, then the closing bid
price
on such date, or if there is no closing bid 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 then on the OTC Bulletin Board
or
any registered national stock exchange, the last closing price for a share
of
Common Stock in the over-the-counter market, as reported by the OTC Bulletin
Board or in the National Quotation Bureau Incorporated or similar organization
or agency succeeding to its functions of reporting prices, at the close of
business on such date, or if there is no closing price on such date, then the
closing bid price on such date, or (c) if the Common Stock is not then reported
by the OTC Bulletin Board or the National Quotation Bureau Incorporated (or
similar organization or agency succeeding to its functions of reporting prices),
then the average of the "Pink Sheet" quotes for the five (5) Trading Days
preceding such date of determination, or (d) 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
September 7, 2006, among the Issuer and the Purchasers.
"Purchasers"
means
the purchasers of the Series B Convertible Preferred Stock and
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.
-15-
"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
(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 the
National Quotation Bureau Incorporated (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.
"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 U.S. $6.03, 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.
9. Other
Notices.
In case
at any time:
|
(A)
|
the
Issuer shall make any distributions to the holders of Common Stock;
or
|
-16-
|
(B)
|
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
|
|
(C)
|
there
shall be any reclassification of the Capital Stock of the Issuer;
or
|
|
(D)
|
there
shall be any capital reorganization by the Issuer;
or
|
|
(E)
|
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
|
|
(F)
|
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;
|
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.
10. 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 10 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.
-17-
11. 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 11 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 the 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.
12. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earlier of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified for
notice prior to 5:00 p.m., eastern time, on a Trading Day, (ii) the Trading
Day
after the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile telephone number specified for notice later than
5:00
p.m., eastern time, on any date and earlier than 11:59 p.m., eastern time,
on
such date, (iii) the Trading Day following the date of mailing, if sent by
overnight delivery by a nationally recognized overnight courier service or
(iv)
actual receipt by the party to whom such notice is required to be given. The
addresses for such communications shall be with respect to the Holder of this
Warrant or of Warrant Stock issued pursuant hereto, addressed to such Holder
at
its last known address or facsimile number appearing on the books of the Issuer
maintained for such purposes, or with respect to the Issuer, addressed
to:
|
Dolce
Ventures Inc.
|
||
|
X0.00
Xxxxx Xxxx Xxx Xxxx Xx.
|
||
|
Haidian
District
|
||
|
Beijing,
China
|
||
|
Attention:
Xxxx Xxxx
|
||
|
Tel.
No.: 000-00-00-00000000
|
||
|
Fax
No.: 000-000-00000000
|
|
shall
not constitute notice
|
||
|
to
the Issuer) to:
|
GUZOV
OFSINK, LLC
|
|
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
||
|
Attention:
Xxxxxx Xxxxxx
|
||
|
Tel.
No.: (000) 000-0000, ext. 127
|
||
|
Fax
No.: (000) 000-0000
|
-18-
Any
party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 Registration Rights Agreement, of even date
herewith, by and among the Company and Persons listed on Schedule I thereto
(the
“Registration
Rights Agreement”)
and
the registration rights with respect to the shares of Warrant Stock issuable
upon the exercise of this Warrant by any subsequent Holder may only be assigned
in accordance with the terms and provisions of the Registrations Rights
Agreement.
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-19-
IN
WITNESS WHEREOF, the Issuer has executed this Series D Warrant as of the day
and
year first above written.
| DOLCE VENTURES INC. | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
-20-
EXERCISE
FORM
SERIES
D
WARRANT
DOLCE
VENTURES INC.
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Dolce Ventures Inc.
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: _________________________
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
|
_____________________
_____________________
|
-21-
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 _______________.
-22-
