Contract
Exhibit
10.9
THIS
WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
WARRANT
TO PURCHASE
124,000
SHARES
OF
COMMON STOCK
(SUBJECT
TO ADJUSTMENT)
(Void
after June 22, 2012)
|
Bridge
Warrant No: 3
|
June
22, 2007
|
This
certifies that for value, Sands Brothers Venture Capital III LLC, or registered
assigns (the ”Holder”),
is
entitled, subject to the terms set forth below, at any time from and after
June
22, 2007 (the “Original Issuance
Date”)
and
before 5:00 p.m., Eastern Time, on June 22, 2012 (the “Expiration
Date”),
to
purchase from XA,
Inc.,
a
Nevada corporation (the “Company”),
One
Hundred and Twenty-Four Thousand
(124,000) shares
(subject to adjustment as described herein), of common stock, par value $0.001
per share, of the Company (the “Common
Stock”),
upon
surrender hereof, at the principal office of the Company referred to below,
with
a duly executed subscription form in the form attached hereto as Exhibit A
and
simultaneous payment therefor in lawful, immediately available money of the
United States or otherwise as hereinafter provided, at an initial exercise
price
per share of $0.30 (the “Purchase
Price”).
The
Purchase Price is subject to further adjustment as provided in Section
4
below.
The term “Common
Stock”
shall
include, unless the context otherwise requires, the stock and other securities
and property at the time receivable upon the exercise of this Warrant. The
term
“Warrant,”
as
used herein, shall mean this Warrant and any other Warrants delivered in
substitution or exchange therefor as provided herein.
This
Warrant is being issued by the Company together with an 11% Senior Secured
Convertible Promissory Note in the amount of $124,000 (the “Note”)
pursuant to the terms and conditions set forth in the Securities Purchase
Agreement dated the date hereof by and between the Holder and the Company (the
“SPA”),
in
connection with the sale by the Company of $500,000 aggregate principal amount
of Notes (the “Follow
On Notes”).
1
1. Exercise.
This
Warrant may be exercised at any time or from time to time from and after the
Original Issuance Date and before 5:00 p.m., Eastern Time, on June 22,
2012, unless such Warrant is terminated pursuant to Section
6,
below,
on any business day, for the full number of shares of Common Stock called for
hereby, by surrendering it at the principal office of the Company, at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, with the subscription form
duly
executed, together with payment in an amount equal to (a) the number of
shares of Common Stock called for on the face of this Warrant, multiplied
(b) by the Purchase Price. Payment of the Purchase Price may be made at
Holder’s choosing either: (1) by payment in immediately available funds; or (2)
in lieu of any cash payment, if this Warrant is exercised on a date when a
Registration Statement (as defined in the Registration Rights Agreement),
covering the resale of the shares of Common Stock issuable upon exercise of
this
Warrant has not been declared effective by the Securities and Exchange
Commission (the “Commission”),
or is
no longer in effect, and the Fair Market Value (as defined below) is equal
to or
greater than the Purchase Price, in exchange for the number of shares of Common
Stock equal to the product of (x) the number of shares to which the Warrants
are
being exercised multiplied by (y) a fraction, the numerator of which is the
Purchase Price and the denominator of which is the Fair Market Value (as defined
below). This Warrant may be exercised for less than the full number of shares
of
Common Stock at the time called for hereby, except that the number of shares
receivable upon the exercise of this Warrant as a whole, and the sum payable
upon the exercise of this Warrant as a whole, shall be proportionately reduced.
Upon a partial exercise of this Warrant in accordance with the terms hereof,
this Warrant shall be surrendered, and a new Warrant of the same tenor and
for
the purchase of the number of such shares not purchased upon such exercise
shall
be issued by the Company to Holder without any charge therefor. A Warrant shall
be deemed to have been exercised immediately prior to the close of business
on
the date of its surrender for exercise as provided above, and the person
entitled to receive the shares of Common Stock issuable upon such exercise
shall
be treated for all purposes as the holder of such shares of record as of the
close of business on such date. Within two (2) business days after such date,
the Company shall issue and deliver to the person or persons entitled to receive
the same a certificate or certificates for the number of full shares of Common
Stock issuable upon such exercise, together with cash, in lieu of any fraction
of a share, equal to such fraction of the then Fair Market Value on the date
of
exercise of one full share of Common Stock.
“Fair
Market Value”
shall
mean, as of any date: (i) if shares of the Common Stock are listed on a
national securities exchange, the average of the closing prices as reported
for
composite transactions during the ten (10) consecutive trading days preceding
the trading day immediately prior to such date or, if no sale occurred on a
trading day, then the mean between the closing bid and asked prices on such
exchange on such trading day; (ii) if shares of the Common Stock are not so
listed but are traded on the NASDAQ National Market (“NNM”),
the
average of the closing prices as reported on the NNM during the ten (10)
consecutive trading days preceding the trading day immediately prior to such
date or, if no sale occurred on a trading day, then the mean between the highest
bid and lowest asked prices as of the close of business on such trading day,
as
reported on the NNM; or if applicable, the Nasdaq Capital Market (“NCM”),
(iii)
if not then included for quotation on the NNM or the NCM, the average of the
highest reported bid and lowest reported asked prices as reported by the OTC
Bulletin Board of the National Quotation Bureau, as the case may be; or
(iv) if the shares of the Common Stock are not then publicly traded, the
fair market price of the Common Stock as determined in good faith by
the
independent members of the Board of Directors of the Company and the Holders
of
all Warrants.
2
2. Shares
Fully Paid; Payment of Taxes.
All
shares of Common Stock issued upon the exercise of this Warrant shall be validly
issued, fully paid and non-assessable, and the Company shall pay all taxes
and
other governmental charges (other than income taxes to the holder) that may
be
imposed in respect of the issue or delivery thereof.
3. Transfer
and Exchange.
(a)
Neither this Warrant nor the Common Stock to be issued upon exercise hereof
(the
“Warrant
Shares”)
have
been registered under the Act or any state securities laws (“Blue
Sky Laws”).
This
Warrant has been acquired for investment purposes and not with a view to
distribution or resale and may not be sold or otherwise transferred without:
(i)
an effective registration statement for such Warrant under the Act and such
applicable Blue Sky Laws; or (ii) an opinion of counsel reasonably satisfactory
to the Company that registration is not required under the Act or under any
applicable Blue Sky Laws.
(b) Upon
compliance with applicable federal and state securities laws as set forth in
Section
3(a),
above,
this Warrant and all rights hereunder are transferable, in whole or in part,
on
the books of the Company maintained for such purpose at its Principal Office
by
the Holder in person or by duly authorized attorney, upon surrender of this
Warrant together with a completed and executed assignment form in the form
attached hereto as Exhibit B,
and
payment of any necessary transfer tax or other governmental charge imposed
upon
such transfer. Upon any partial transfer, the Company will issue and deliver
to
the assignee a new Warrant with respect to the shares of Common Stock for which
it is exercisable that have been transferred, and will deliver to the Holder
a
new Warrant or Warrants with respect to the shares of Common Stock not so
transferred. A Warrant may be transferred only by the procedure set forth
herein. No transfer shall be effective until such transfer is recorded on the
books of the Company, provided that such transfer is recorded promptly by the
Company, and until such transfer on such books, the Company shall treat the
registered Holder hereof as the owner of the Warrant for all
purposes.
(c) This
Warrant is exchangeable at the Principal Office for two or more new Warrants,
each in the form of this Warrant, to purchase the same aggregate number of
shares of Common Stock, each new Warrant to represent the right to purchase
such
number of shares as the Holder shall designate at the time of such exchange,
but
which shall not exceed the total number of shares for which this Warrant may
be
from time to time exercisable.
(d) Transfer
of the Warrant Shares issued upon the exercise of this Warrant shall be
restricted in the same manner and to the same extent as the Warrant, and the
certificates representing such Warrant Shares shall bear substantially the
following legend, until such Warrant Shares have been registered under the
Act
or may be removed as otherwise permitted under the Act:
“THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE
STATE SECURITIES LAW
AND
MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR
SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.”
3
(e) The
Holder and the Company agree to execute such other documents and instruments
as
counsel to the Company deems necessary to effect the compliance of the issuance
of this Warrant and any Warrant Shares issued upon exercise hereof with
applicable federal and state securities laws, including compliance with
applicable exemptions from the registration requirements of such
laws.
4. Anti-Dilution
Provisions.
The
Purchase Price in effect at any time and the number and kind of securities
issuable upon conversion of this Warrant shall be subject to adjustment from
time to time upon the happening of certain events as follows:
A. Adjustment
for Stock Splits and Combinations.
If the
Company at any time or from time to time on or after the date of Warrant
issuance (the “Original
Issuance Date”)
effects a subdivision of the outstanding Common Stock, the Purchase Price then
in effect immediately before that subdivision shall be proportionately
decreased, and conversely, if the Company at any time or from time to time
on or
after the Original Issuance Date combines the outstanding shares of Common
Stock
into a smaller number of shares, the Purchase Price then in effect immediately
before the combination shall be proportionately increased. Any adjustment under
this Section
4(A) shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
B. Adjustment
for Certain Dividends and Distributions.
If the
Company at any time or from time to time on or after the Original Issuance
Date
makes or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, then and in each such event the Purchase Price then
in
effect shall be decreased as of the time of such issuance or, in the event
such
record date is fixed, as of the close of business on such record date, by
multiplying the Purchase Price then in effect by a fraction (1) the numerator
of
which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on
such
record date and (2) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution;
provided,
however,
that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record
date
and thereafter the Purchase Price shall be adjusted pursuant to this
Section 4(B)
as of
the time of actual payment of such dividends or distributions.
4
C. Adjustments
for Other Dividends and Distributions.
In the
event the Company at any time or from time to time on or after the Original
Issuance Date makes, or fixes a record date for the determination of holders
of
Common Stock entitled to receive, a dividend or other distribution payable
in
securities of the Company other than shares of Common Stock, then and in each
such event provision shall be made so that the Holders of Warrants shall receive
upon exercise thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Company which they would
have received had their Warrants been exercised into Common Stock on the date
of
such event and had they thereafter, during the period from the date of such
event to and including the conversion date, retained such securities receivable
by them as aforesaid during such period, subject to all other adjustments called
for during such period under this Section
4
with
respect to the rights of the Holders of the Warrants.
D. Adjustment
for Reclassification, Exchange and Substitution.
In the
event that at any time or from time to time on or after the Original Issuance
Date, the Common Stock issuable upon the exercise of the Warrants is changed
into the same or a different number of shares of any class or classes of stock,
whether by recapitalization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets, provided for elsewhere in this
Section 4),
then
and in any such event each Holder of Warrants shall have the right thereafter
to
exercise such Warrant to receive the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change, by holders of the maximum number of shares of Common Stock
for
which such Warrants could have been exercised immediately prior to such
recapitalization, reclassification or change, all subject to further adjustment
as provided herein.
E.
Recapitalization, Reorganization, Reclassification, Consolidation, Merger or
Sale.
(i)
In
case the Company after the Original Issuance Date shall do any of the following
(each, a "Triggering
Event"):
(a)
consolidate or merge with or into any other individual or entity (“Person”)and
the
Company 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 Company and the Company shall be the continuing or surviving
Person but, in connection with such consolidation or merger, any common or
preferred stock (“Capital
Stock”)
of the
Company shall be changed into or exchanged for Securities of any other Person
or
cash or any other property, or (c) transfer all or substantially all of its
properties or assets to any other Person, or (d) effect a capital reorganization
or reclassification of its Capital Stock, then, and in the case of each such
Triggering Event, proper provision shall be made to the Exercise Price and
the
number of shares of Warrant Shares that may be purchased upon exercise of this
Warrant so that, upon the basis and the terms and in the manner provided in
this
Warrant, the Holder of this Warrant shall be entitled upon the exercise hereof
at any time after the consummation of such Triggering Event, to the extent
this
Warrant is not exercised prior to such Triggering Event, to receive at the
Exercise Price as adjusted to take into account the consummation of such
Triggering Event, in lieu of the Common Stock issuable upon such exercise of
this Warrant prior to such Triggering Event, the Securities, cash and property
to which such Holder would have been entitled upon the consummation of such
Triggering Event if such Holder had exercised the rights represented by this
Warrant immediately prior thereto (including the right of a shareholder to
elect
the type of consideration it will receive upon a Triggering Event), subject
to
adjustments (subsequent to such corporate action) as nearly equivalent as
possible to the adjustments provided
for elsewhere in this Section
4,
and the
Exercise Price shall be adjusted to equal the product of (A) the closing price
of the common stock of the continuing or surviving corporation as a result
of
such Triggering Event as of the date immediately preceding the date of the
consummation of such Triggering Event multiplied by (B) the quotient of (i)
the
Exercise Price divided by (ii) the per share Fair Market Value of the Common
Stock as of the date immediately preceding the Original Issuance Date;
provided,
however,
the
Holder at its option may elect to receive an amount in cash equal to the lesser
of (a) the value of this Warrant calculated in accordance with the Black-Scholes
formula; and (b) $1.00 (subject to adjustment in the event the Company affects
a
stock split) per Warrant Share. Immediately upon the occurrence of a Triggering
Event, the Company shall notify the Holder in writing of such Triggering Event
and provide the calculations in determining the number of shares of Warrant
Shares issuable upon exercise of the new warrant and the adjusted Exercise
Price. Upon the Holder’s request, the continuing or surviving corporation as a
result of such Triggering Event shall issue to the Holder a new warrant of
like
tenor evidencing the right to purchase the adjusted number of shares of Warrant
Shares and the adjusted Exercise Price pursuant to the terms and provisions
of
this Section
4(E)(i).
Notwithstanding the foregoing to the contrary, this Section
4(E)(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 Company pay to the Holder an amount in cash equal
to the value of this Warrant calculated in accordance with the Black-Scholes
formula.
5
(ii) In
the
event that the Holder has elected not to exercise this Warrant prior to the
consummation of a Triggering Event and has also elected not to receive an amount
in cash equal to the value of this Warrant calculated in accordance with the
Black-Scholes formula pursuant to the provisions of Section
4(E)(i)
above
(and subject to the limit described in Section
4(E)(i),
above),
so long as the surviving entity pursuant to any Triggering Event is a company
that has a class of equity securities registered
pursuant to the Securities Exchange Act of 1934, as amended, and its common
stock is listed or quoted on a national securities exchange, national automated
quotation system or the OTC Bulletin Board,
the
surviving entity and/or each Person (other than the Company) 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 Company under this Warrant (and if the Company shall survive the
consummation of such Triggering Event, such assumption shall be in addition
to,
and shall not release the Company from, any continuing obligations of the
Company 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
(ii),
such
Holder shall be entitled to receive, and the surviving entity and/or each such
Person shall have similarly delivered to such Holder an opinion of counsel
for
the surviving entity and/or each such Person, which counsel shall be reasonably
satisfactory to such Holder, or in the alternative, a written acknowledgement
executed by the President or Chief Financial Officer of the Company, 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
(ii))
shall
be applicable to the Securities, cash or property which the surviving entity
and/or each such Person may be required to deliver upon any exercise of this
Warrant or the exercise of any rights pursuant hereto.
6
F. Sale
of Shares Below Purchase Price:
(1)
If at
any time or from time to time following the Original Issuance Date, the Company
issues or sells, or is deemed by the express provisions of this Section 4(F)
to have
issued or sold, Additional Shares of Common Stock (as hereinafter defined),
other than as a dividend or other distribution on any class of stock and other
than upon a subdivision or combination of shares of Common Stock, in either
case
as provided in Section 4(A)
above,
for an Effective Price (as hereinafter defined) less than the then existing
Purchase Price, then and in each such case the then existing Purchase Price
shall be reduced, as of the opening of business on the date of such issue or
sale, to a price equal to the Effective Price for such Additional Shares of
Common Stock.
(2) For
the
purpose of making any adjustment required under Section 4(F),
the
consideration received by the Company for any issue or sale of securities shall
(I) to the extent it consists of cash be computed at the amount of cash
received by the Company, (II) to the extent it consists of property other
than cash, be computed at the fair value of that property as determined in
good
faith by the board of directors of the Company (the “Board”),
(III) if Additional Shares of Common Stock, Convertible Securities (as
hereinafter defined) or rights or options to purchase either Additional Shares
of Common Stock or Convertible Securities are issued or sold together with
other
stock or securities or other assets of the Company for a consideration which
covers both, be computed as the portion of the consideration so received that
may be reasonably determined in good faith by the Board to be allocable to
such
Additional Shares of Common Stock, Convertible Securities or rights or options,
and (IV) be computed after reduction for all expenses payable by the
Company in connection with such issue or sale.
(3) For
the
purpose of the adjustment required under Section 4(F),
if the
Company issues or sells any rights, warrants or options for the purchase of,
or
stock or other securities convertible into or exchangeable for, Additional
Shares of Common Stock (such convertible or exchangeable stock or securities
being hereinafter referred to as “Convertible
Securities”)
and if
the Effective Price of such Additional Shares of Common Stock is less than
the
Purchase Price then in effect, then in each case the Company shall be deemed
to
have issued at the time of the issuance of such rights, warrants, options or
Convertible Securities the maximum number of Additional Shares of Common Stock
issuable upon exercise, conversion or exchange thereof and to have received
as
consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Company for the issuance
of
such rights, warrants, options or Convertible Securities, plus, in the case
of
such rights, warrants or options, the minimum amounts of consideration, if
any,
payable to the Company upon the exercise of such rights, warrants or options,
plus, in the case of Convertible Securities, the minimum amounts of
consideration, if any, payable to the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible Securities) upon the
conversion or exchange thereof. No further adjustment of the Purchase Price,
adjusted upon the issuance of such rights, warrants, options or Convertible
Securities, shall be made as a result of the
actual issuance of Additional Shares of Common Stock on the exercise of any
such
rights, warrants or options or the conversion or exchange of any such
Convertible Securities. If any such rights or options or the conversion or
exchange privilege represented by any such Convertible Securities shall expire
without having been exercised, the Purchase Price adjusted upon the issuance
of
such rights, warrants, options or Convertible Securities shall be readjusted
to
the Purchase Price which would have been in effect had an adjustment been made
on the basis that the only Additional Shares of Common Stock so issued were
the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights, warrants, or options or rights of conversion or
exchange of such Convertible Securities, and such Additional Shares of Common
Stock, if any, were issued or sold for the consideration actually received
by
the Company upon such exercise, plus the consideration, if any, actually
received by the Company for the granting of all such rights, warrants, or
options, whether or not exercised, plus the consideration received for issuing
or selling the Convertible Securities actually converted or exchanged, plus
the
consideration, if any, actually received by the Company (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion or exchange of such Convertible
Securities.
7
(4) For
the
purpose of the adjustment required under Section 4(F),
if the
Company issues or sells, or is deemed by the express provisions of this
Section 4 to
have issued or sold, any rights or options for the purchase of Convertible
Securities and if the Effective Price of the Additional Shares of Common Stock
underlying such Convertible Securities is less than the Purchase Price then
in
effect, then in each such case the Company shall be deemed to have issued at
the
time of the issuance of such rights or options the maximum number of Additional
Shares of Common Stock issuable upon conversion or exchange of the total amount
of Convertible Securities covered by such rights or options and to have received
as consideration for the issuance of such Additional Shares of Common Stock
an
amount equal to the amount of consideration, if any, received by the Company
for
the issuance of such rights, warrants or options, plus the minimum amounts
of
consideration, if any, payable to the Company upon the exercise of such rights,
warrants or options, plus the minimum amount of consideration, if any, payable
to the Company (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or exchange of
such Convertible Securities. No further adjustment of the Purchase Price,
adjusted upon the issuance of such rights, warrants or options, shall be made
as
a result of the actual issuance of the Convertible Securities upon the exercise
of such rights, warrants or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion or exchange of such Convertible
Securities. The provisions of paragraph (3) above for the readjustment of
the Purchase Price upon the expiration of rights, warrants or options or the
rights of conversion or exchange of Convertible Securities shall apply
mutatis mutandis
to the
rights, warrants options and Convertible Securities referred to in this
paragraph (4).
(5) “Additional
Shares of Common Stock”
shall
mean all shares of Common Stock (or any debt or equity securities convertible
or
exercisable into Common Stock) issued by the Company on or after the Original
Issuance Date, whether or not subsequently reacquired or retired by the Company,
other than (I) the Warrant Shares, (II) the shares of Common Stock issuable
upon conversion of the Note, (III) shares of Common Stock issuable upon
exercise of warrants, options and convertible securities outstanding as of
the
Original Issuance Date (provided that the terms of such warrants, options and
convertible securities are not
modified after the Original Issuance Date to adjust the exercise price),
(IV) shares of Common Stock issued pursuant to any event for which
adjustment is made to the Purchase Price under Section 4
hereof
or to the exercise price under the anti-dilution provisions of any securities
outstanding as of the Original Issuance Date (including the Notes), and
(V) 25,000 shares of common stock which the Company has previously agreed
to issue to its legal counsel, Xxxxx X. Xxxx (as disclosed in its SEC filings,
which shares have not been issued to date). The “Effective
Price”
of
Additional Shares of Common Stock shall mean the quotient determined by dividing
the total number of Additional Shares of Common Stock issued or sold, or deemed
to have been issued or sold by the Company under this Section 4F,
into
the aggregate consideration received, or deemed to have been received, by the
Company for such issue under this Section 4F,
for
such Additional Shares of Common Stock.
8
(6) Other
than a reduction pursuant to its applicable anti-dilution provisions, any
reduction in the conversion price of any Convertible Security, whether
outstanding on the Original Issuance Date or thereafter, or the price of any
option, warrant or right to purchase Common Stock or any Convertible Security
(whether such option, warrant or right is outstanding on the Original Issuance
Date or thereafter), to an Effective Price less than the current Purchase Price,
shall be deemed to be an issuance of such Convertible Security and all such
options, warrants or rights at such Effective Price, and the provisions of
Sections 4(F)(3),
(4)
and
(5)
shall
apply thereto mutatis mutandis.
(7) Any
time
an adjustment is made to the Purchase Price pursuant to Section
4(F),
a
corresponding proportionate change shall be made to the number of shares of
Common Stock issuable upon conversion of this Warrant.
G. No
Adjustments in Certain Circumstances.
No
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one ($0.01) cent in such price;
provided,
however,
that
any adjustments which by reason of this Section 4(G)
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All calculations under
this
Section 4(G)
shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the
case
may be.
5. Notices
of Record Date.
In
case:
A. the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of the Warrants) for
the
purpose of entitling them to receive any dividend or other distribution, or
any
right to subscribe for or purchase any shares of stock of any class or any
other
securities, or to receive any other right, or
B. of
any
capital reorganization of the Company, any reclassification of the capital
stock
of the Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of
the
Company to another corporation, or
C. of
any
voluntary dissolution, liquidation or winding-up of the Company; then, and
in
each such case, the Company will mail or cause to be mailed to each holder
of a
Warrant at the time outstanding a notice specifying, as the case may be,
(a) the date on which a record is to be
taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (b) the date on
which such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is expected to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such stock or securities at the time receivable upon the exercise of the
Warrants) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up, such notice shall be mailed at least
ten
(10) days prior to the date therein specified.
9
6. [Intentionally
removed.]
7. Loss
or Mutilation.
Upon
receipt by the Company of evidence satisfactory to it (in the exercise of
reasonable discretion) of the ownership of and the loss, theft, destruction
or
mutilation of any Warrant and (in the case of loss, theft or destruction) of
indemnity satisfactory to it (in the exercise of reasonable discretion), and
(in
the case of mutilation) upon surrender and cancellation thereof, the Company
will execute and deliver in lieu thereof a new Warrant of like
tenor.
8. Reservation
of Common Stock.
The
Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all outstanding
Warrants. All of the shares of Commons Stock issuable upon the exercise of
the
rights represented by this Warrant will, upon issuance and receipt of the
Purchase Price therefor, be fully paid and nonassessable, and free from all
preemptive rights, rights of first refusal or first offer, taxes, liens and
charges of whatever nature, with respect to the issuance thereof.
9. Registration
Rights Agreement.
The
Holder of this Warrant is entitled to have a portion of the Warrant Shares
registered for resale under the Act, pursuant to and in accordance with the
Registration Rights Agreement dated as of the date hereof by and between the
Holder and the Company.
10. No
Rights as Stockholder Conferred by Warrants.
The
Warrant shall not entitle the Holder hereof to any of the rights, either at
law
or in equity, of a stockholder of the Company. The Holder shall, upon the
exercise thereof, not be entitled to any dividend that may have accrued or
which
may previously have been paid with respect to shares of stock issuable upon
the
exercise of the Warrant, except as may otherwise be provided in Section
4
hereof.
11. Notices.
All
notices and other communications from the Company to the Holder of this Warrant
shall be mailed by first class, registered or certified mail, postage prepaid,
and/or a nationally recognized overnight courier service to the address
furnished to the Company in writing by the Holder.
12. Change;
Modifications; Waiver.
No
terms of this Warrant may be amended, waived or modified except by the express
written consent of the Company and the holders of not less than 50.1% of the
shares of Common Stock then issuable under outstanding Warrants issued in
connection with the Company’s August, September, and October 2006 warrants, and
June 2007 warrants;
provided,
however,
that no
such amendment or waiver shall reduce the Warrant Share Number, increase the
Purchase Price, shorten the period during which this Warrant may be exercised
or
modify any provision of this Section
12
without
the consent of the Holder of this Warrant. Notwithstanding the foregoing
sentence, the Purchase Price will be subject to adjustment in the event of
a
forward or reverse stock split. 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.
10
13. Endorsement
of Warrants.
The
Warrant when presented or surrendered for exchange, transfer or registration
shall be accompanied (if so required by the Company) by an assignment in the
form attached hereto as Exhibit
B
or such
other written instrument of transfer, in form satisfactory to the Company,
duly
executed by the registered Holder or by his duly authorized
attorney.
14. Agreement
of Warrant Holders.
The
Holder, and to the extent that portions of this Warrant are assigned and there
is more than one Holder of warrants exercisable for the Warrant Shares, every
holder of a Warrant, by accepting the same, consents and agrees with the Company
and with all other Warrant holders that: (a) the Warrants are transferable
only
as permitted by Section
3
above;
(b) the Warrants are transferable only on the registry books of the Company
as
herein provided; and (c) the Company may deem and treat the person in whose
name
the Warrant certificate is registered as the absolute owner thereof and of
the
Warrants evidenced thereby for all purposes whatsoever, and the Company shall
not be affected by any notice to the contrary.
15. Payment
of Taxes.
The
Company will pay all stamp, transfer and other similar taxes payable in
connection with the original issuance of this Warrant and the shares of Common
Stock issuable upon exercise thereof, provided, however, that the Company shall
not be required to (i) pay any such tax which may be payable in respect of
any
transfer involving the transfer and delivery of this Warrant or the issuance
or
delivery of certificates for shares of Common Stock issuable upon exercise
thereof in a name other than that of the registered Holder of this Warrant
or
(ii) issue or deliver any certificate for shares of Common Stock upon the
exercise of this Warrant until any such tax required to be paid under clause
(i)
shall have been paid, all such tax being payable by the holder of this Warrant
at the time of surrender.
16. 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 Company with sixty-one (61) days
notice (pursuant to Section
13
hereof)
(the "Waiver
Notice")
that
such Holder would like to waive this Section
7
with
regard to any or all shares of Common Stock issuable upon exercise of this
Warrant, this Section
7
will be
of no force or effect with regard to all or a portion of the Warrant referenced
in the Waiver Notice; provided,
further,
that
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.
11
17. Fractional
Interest.
The
Company shall not be required to issue fractional shares of Common Stock on
the
exercise of this Warrant. If more than one Warrant shall be presented for
exercise at the same time by the Holder, the number of full shares of Common
Stock which shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of shares of Common Stock acquirable on exercise of
the
Warrants so presented. If any fraction of a share of Common Stock would, except
for the provisions of this Section
17,
be
issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash calculated by it to be equal to the Purchase
Price per share multiplied by such fraction computed to the nearest whole cent.
The Holder by his acceptance of this Warrant expressly waives any and all rights
to receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
18. Entire
Agreement.
This
Warrant constitutes the full and entire understanding and agreement among the
parties with regard to the subject matter hereof and no party shall be liable
or
bound to any other party in any manner by any representations, warranties,
covenants or agreements except as specifically set forth herein.
19. Successors
and Assigns.
All
covenants and provisions of this Warrant by or for the benefit of the Company
or
the Holder of this Warrant shall bind and inure to the benefit of their
respective successors, permitted assigns, heirs and personal
representatives.
20. Termination.
This
Warrant shall terminate at 5:00 p.m., Eastern Time, on the Expiration Date
or
upon such earlier date on which all of this Warrant has been exercised (the
“Termination
Date”).
21. Headings.
The
headings in this Warrant are for purposes of convenience in reference only,
and
shall not be deemed to constitute a part hereof.
22. Governing
Law, Etc.
This
Agreement shall be governed by and construed exclusively in accordance with
the
internal laws of the State of New York without regard to the conflicts of laws
principles thereof. The parties hereto hereby irrevocably agree that any suit
or
proceeding arising directly and/or indirectly pursuant to or under this
Agreement, shall be brought solely in a federal or state court located in the
City, County and State of New York. By its execution hereof, the parties hereby
covenant and irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City, County and
State of New York and agree that any process in any such action may be served
upon any of them personally, or by certified mail or registered mail upon them
or their agent, return receipt requested, with the same full force and effect
as
if personally served upon them in New York City. The parties hereto waive any
claim that any such jurisdiction is not a convenient forum for any such suit
or
proceeding and any defense or lack of in personam
jurisdiction with respect thereto. In the event of any such action or
proceeding, the party prevailing therein shall be entitled to payment from
the
other party hereto of all of its reasonable legal fees and
expenses.
Remainder
of Page Intentionally Left Blank
12
WARRANT
SIGNATURE PAGE
Dated:
June 22, 2007
|
By:
/s/ Xxxxxx Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title:
President & CEO
|
124,000
Shares
13
EXHIBIT
A
SUBSCRIPTION
FORM
(To
be
executed only upon exercise of Warrant)
The
undersigned registered owner of this Warrant irrevocably exercises this Warrant
and purchases _______ shares of the Common Stock of XA, Inc., purchasable with
this Warrant, and herewith makes payment therefor (either in cash or pursuant
to
the cashless exercise provisions set forth in Section
1
of the
Warrant), all at the price and on the terms and conditions specified in this
Warrant.
Dated:
|
(Signature
of Registered Owner)
|
|
|
(Street
Address)
|
|
|
(City
/ State / Zip Code)
|
14
EXHIBIT
B
FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED
the
undersigned registered owner of this Warrant hereby sells, assigns and transfers
unto the Assignee named below all of the rights of the undersigned under the
within Warrant, with respect to the number of shares of Common Stock set forth
below:
|
Name
of Assignee
|
Address
|
Number
of Shares
|
|
|
|
|
|
|
and
does
hereby irrevocably constitute and appoint __________________________ Attorney
to
make such transfer on the books of XA, Inc., maintained for the purpose, with
full power of substitution in the premises.
Dated:
|
(Signature)
|
|
|
(Witness)
|
The
undersigned Assignee of the Warrant hereby makes to XA, Inc., as of the date
hereof, with respect to the Assignee, all of the representations and warranties
made by the Holder, and the undersigned Assignee agrees to be bound by all
the
terms and conditions of the Warrant and the XA, Inc. Registration Rights
Agreement, dated as of ______ __, 2006, by and between XA, Inc. and the
Holder.
Dated:
|
(Signature)
|
15
