WARRANT TO PURCHASE COMMON STOCK
Exhibit
99.3
THIS
WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY
NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
SUCH
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT
TO PURCHASE COMMON STOCK
|
Number
of Shares:
|
Up
to ___________ shares (subject to adjustment)
|
|
Warrant
Price:
|
$____
per share
|
|
Issuance
Date:
|
June
20, 2006
|
|
Expiration
Date:
|
June
20 , 2011
|
THIS
WARRANT CERTIFIES THAT
for
value received, _________________ or its registered assigns (hereinafter called
the “Holder”)
is
entitled to purchase from AHPC Holdings, Inc., a Maryland corporation
(hereinafter called the “Company”),
the
above referenced number of fully paid and nonassessable shares (the
“Shares”)
of
common stock, par value $0.01 per share (the “Common
Stock”)
of
Company, at the Warrant Price per Share referenced above; the number of shares
purchasable upon exercise of this Warrant referenced above being subject to
adjustment from time to time as described herein. This Warrant is issued in
connection with that certain Subscription Agreement dated as of June 20, 2006,
by and among the Company, Holder and the other parties therein named (the
“Subscription
Agreement”).
The
exercise of this Warrant shall be subject to the provisions, limitations and
restrictions contained herein.
1.
Term
and Exercise.
1.1 Term.
This
Warrant is exercisable in whole or in part (but not as to any fractional share
of Common Stock), at any time and from time to time after the date that is
six
(6) months after the date hereof prior to 6:00 p.m. on the Expiration Date
set
forth above.
1.2 Warrant
Price.
The
Warrant shall be exercisable at the Warrant Price described above.
1.3 Maximum
Number of Shares.
The
maximum number of Shares of Common Stock exercisable pursuant to this Warrant
is
_________ Shares. However, notwithstanding anything herein to the contrary,
in
no event shall the Holder be permitted to exercise this Warrant for a number
of
Shares greater than the number that would cause the aggregate beneficial
ownership of the Company’s Common Stock (calculated pursuant to Rule 13d-3 of
the Securities Exchange Act of 1934, as amended) of the Holder and all persons
affiliated with the Holder to equal 9.99% of
the
Company’s Common Stock then outstanding.
1.4 Procedure
for Exercise of Warrant.
Holder
may exercise this Warrant by delivering the following to the principal office
of
the Company in accordance with Section 5.1 hereof: (i) a duly executed
Notice of Exercise in substantially the form attached as Schedule A,
(ii) payment of the Warrant Price then in effect for each of the Shares
being purchased, as designated in the Notice of Exercise, and (iii) this
Warrant. Payment of the Warrant Price may be in cash, certified or official
bank
check payable to the order of the Company, or wire transfer of funds to the
Company’s account (or any combination of any of the foregoing) in the amount of
the Warrant Price for each share being purchased.
1.5 Delivery
of Certificate and New Warrant.
In the
event of any exercise of the rights represented by this Warrant, a certificate
or certificates for the shares of Common Stock so purchased, registered in
the
name of the Holder or such other name or names as may be designated by the
Holder, together with any other securities or other property which the Holder
is
entitled to receive upon exercise of this Warrant, shall be delivered to the
Holder hereof, at the Company’s expense, within a reasonable time, not exceeding
fifteen (15) calendar days, after the rights represented by this Warrant shall
have been so exercised; and, unless this Warrant has expired, a new Warrant
representing the number of Shares (except a remaining fractional share), if
any,
with respect to which this Warrant shall not then have been exercised shall
also
be issued to the Holder hereof within such time. The person in whose name any
certificate
for shares of Common Stock is issued upon exercise of this Warrant shall
for all
purposes be deemed to have become the holder of record of such shares on
the
date on which the Warrant was surrendered and payment of the Warrant Price
was
received by the Company, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is on
a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such Shares at the close of business
on the
next succeeding date on which the stock transfer books are open.
1.6 Restrictive
Legend.
Each
certificate for Shares shall bear a restrictive legend in substantially the
form
as follows, together with any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon
which such Shares may, at the time of such exercise, be listed:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under applicable state securities laws,
and may not be sold, offered for sale, transferred or pledged in the absence
of
such registration or an exemption therefrom under such Act, or state securities
laws.”
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend shall also bear such legend unless, in the opinion of
counsel for the Holder thereof (which counsel shall be reasonably satisfactory
to the Company), the securities represented thereby are not, at such time,
required by law to bear such legend.
1.7 Fractional
Shares.
No
fractional Shares shall be issuable upon exercise or conversion of the Warrant
and the number of Shares to be issued shall be rounded down to the nearest
whole
Share. If a fractional share interest arises upon any exercise or conversion
of
the Warrant, the Company shall eliminate such fractional share interest by
paying to Holder an amount computed by multiplying the fractional interest
by
the Current Market Price (as defined below) of a full Share. For purposes of
this Warrant, the “Current
Market Price”
of
one
share of Common Stock as of a particular date shall be determined as follows:
(i) if traded on a national securities exchange or through the Nasdaq Stock
Market, the Current Market Price shall be deemed to be the volume weighted
average trading price of the Common Stock on such exchange as of five business
days immediately prior to such date (or if no reported sales took place on
such
day, the last date on which any such sales took place prior to the date of
exercise); (ii) if traded over-the-counter but not on the Nasdaq Stock Market,
the Current Market Price shall be deemed to be the average of the closing bid
and asked prices as of five business days immediately prior to such date; and
(iii) if there is no active public market, the Current Market Price shall be
the
fair market value of the Common Stock as of such date, as determined in good
faith by the Board of Directors of the Company.
2.
Representations,
Warranties and Covenants.
2.1 Representations
and Warranties.
(a)
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation and has all necessary power and
authority to perform its obligations under this Warrant;
(b)
The
execution, delivery and performance of this Warrant has been duly authorized
by
all necessary actions on the part of the Company and constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms; and
(c)
This
Warrant does not violate and is not in conflict with any of the provisions
of
the Company’s Articles of Incorporation, Bylaws and any resolutions of the
Company’s Board of Directors or stockholders, or any agreement of the Company,
and no event has occurred and no condition or circumstance exists that might
(with or without notice or lapse of time) constitute or result directly or
indirectly in such a violation or conflict.
2
2.2 Issuance
of Shares.
The Company covenants and agrees that all shares of Common Stock that may
be
issued upon the exercise of the rights represented by this Warrant will,
upon
issuance, be validly issued, fully paid and nonassessable, and free from
all
taxes, liens and charges with respect to the issue thereof. The Company further
covenants and agrees that it will pay when due and payable any and all federal
and state taxes which may be payable in respect of the issue of this Warrant
or
any Common Stock or certificates therefor issuable upon the exercise of this
Warrant. The Company further covenants and agrees that the Company will at
all
times have authorized and reserved, free from preemptive rights, a sufficient
number of shares of Common Stock to provide for the exercise in full of the
rights represented by this Warrant. If at any time the number of authorized
but
unissued shares of Common Stock of the Company shall not be sufficient to
effect
the exercise of the Warrant in full, subject to the limitations set forth
in
Section 1.3 hereto, then the Company will take all such corporate action
as may,
in the opinion of counsel to the Company, be necessary or advisable to increase
the number of its authorized shares of Common Stock as shall be sufficient
to
permit the exercise of the Warrant in full, subject to the limitations set
forth
in Section 1.3 hereto, including without limitation, using its best efforts
to
obtain any necessary stockholder approval of such increase. The Company further
covenants and agrees that if any shares of capital stock to be reserved for
the
purpose of the issuance of shares upon the exercise of this Warrant require
registration with or approval of any governmental authority under any federal
or
state law before such shares may be validly issued or delivered upon exercise,
then the Company will in good faith and as expeditiously as possible endeavor
to
secure such registration or approval, as the case may be. If and so long
as the
Common Stock issuable upon the exercise of this Warrant is listed on any
national securities exchange or the Nasdaq Stock Market, the Company will,
if
permitted by the rules of such exchange or market, list and keep listed on
such
exchange or market, upon official notice of issuance, all shares of such
Common
Stock issuable upon exercise of this Warrant.
3.1 Subdivision
or Combination of Shares.
In case
the Company shall at any time subdivide its outstanding Common Stock into a
greater number of shares, the Warrant Price in effect immediately prior to
such
subdivision shall be proportionately reduced, and the number of Shares subject
to this Warrant shall be proportionately increased, and conversely, in case
the
outstanding Common Stock of the Company shall be combined into a smaller number
of shares, the Warrant Price in effect immediately prior to such combination
shall be proportionately increased, and the number of Shares subject to this
Warrant shall be proportionately decreased.
3.2 Dividends
in Common Stock, Other Stock or Property.
If at
any time or from time to time the holders of Common Stock (or any shares of
stock or other securities at the time receivable upon the exercise of this
Warrant) shall have received or become entitled to receive, without payment
therefor:
(a)
Common
Stock, Options or any shares or other securities which are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution;
(b)
any
cash
paid or payable otherwise than as a regular cash dividend; or
(c)
Common
Stock or additional shares or other securities or property (including cash)
by
way of spin-off, split-up, reclassification, combination of shares or similar
corporate rearrangement (other than Common Stock issued as a stock split or
adjustments in respect of which shall be covered by the terms of Section 3.1
above) or additional shares, other securities or property issued in connection
with a Change (as defined below) (which shall be covered by the terms of Section
3.4 below), then and in each such case, the Holder hereof shall, upon the
exercise of this Warrant, be entitled to receive, in addition to the number
of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of stock and other securities
and
property (including cash in the cases referred to in clause (b) above and this
clause (c)) which such Holder would hold on the date of such exercise had such
Holder been the holder of record of such Common Stock as of the date on which
holders of Common Stock received or became entitled to receive such shares
or
all other additional stock and other securities and property.
3.3 Reorganization,
Reclassification, Consolidation, Merger or Sale.
If
any
recapitalization, reclassification or reorganization of the share capital of
the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of its shares and/or assets or other
transaction (including, without limitation, a sale of substantially all of
its
assets followed by a liquidation) shall be effected in such a way that holders
of Common Stock shall be entitled to receive shares, securities or other assets
or property (a “Change”),
then,
as a condition of such Change, lawful and adequate provisions shall be made
by
the Company whereby the Holder hereof shall thereafter have the right to
purchase and receive (in lieu of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby) such shares, securities or other assets or property as
may
be issued or payable with respect to or in exchange for the number of
outstanding shares of Common Stock which such Holder would have been entitled
to
receive had such Holder exercised this Warrant immediately prior to the
consummation of such Change. The Company or its successor shall promptly issue
to Holder a new Warrant for such new securities or other property. The new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may
be practicable to give effect to the adjustments provided for in this Section
3
including, without limitation, adjustments to the Warrant Price and to the
number of securities or property issuable upon exercise of the new Warrant.
The
provisions of this Section 3.3 shall similarly apply to successive Changes.
.
3
4.
Ownership
and Transfer.
4.1 Ownership
of This Warrant.
The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations
of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary until
presentation of this Warrant for registration of transfer as provided in
this
Section 4.
4.2 Non-transferability
and Replacement.
This Warrant and all rights hereunder are not transferable except by operation
of law. . Upon receipt by the Company of evidence reasonably satisfactory
to it
of the loss, theft or destruction, and, in such case, of indemnity or security
reasonably satisfactory to it, and upon surrender of this Warrant if mutilated,
the Company will make and deliver a new Warrant of like tenor, in lieu of
this
Warrant; provided that if the Holder hereof is an instrumentality of a state
or
local government or an institutional holder or a nominee for such an
instrumentality or institutional holder an irrevocable agreement of indemnity
by
such Holder shall be sufficient for all purposes of this Warrant, and no
evidence of loss or theft or destruction shall be necessary. This Warrant
shall
be promptly cancelled by the Company upon the surrender hereof in connection
with any transfer or replacement. In the case of the loss, theft or destruction
of a Warrant, the Holder shall pay all expenses, taxes and other charges
payable
in connection with any replacement of this Warrant.
5.
Miscellaneous
Provisions.
5.1 Notices.
Any
notice or other document required or permitted to be given or delivered to
the
Holder shall be delivered or forwarded to the Holder at c/o M.A.G. Capital,
LLC,
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxxxxx (Facsimile No. 213/553-8285), or to such other address
or number as shall have been furnished to the Company in writing by the Holder,
with a copy to Xxxxxxxx Xxxxxx Xxxxxxx & Hampton LLP, 000 Xxxxx Xxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 Attention Xxxxx X. Xxxxx (Facsimile No.
213/620-1398). Any notice or other document required or permitted to be given
or
delivered to the Company shall be delivered or forwarded to the Company at
00
Xxxxxxxxxxxxx Xxxxxxxxx, Xxxx X, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (facsimile
No.______________),
or to
such other address or number as shall have been furnished to Holder in writing
by the Company or to the Company by Holder.
5.2 All
notices, requests and approvals required by this Warrant shall be in writing
and
shall be conclusively deemed to be given (i) when hand-delivered to the other
party, (ii) when received if sent by facsimile at the address and number set
forth above; provided that notices given by facsimile shall not be effective,
unless either (a) a duplicate copy of such facsimile notice is promptly given
by
depositing the same in the mail, postage prepaid and addressed to the party
as
set forth below or (b) the receiving party delivers a written confirmation
of
receipt for such notice by any other method permitted under this paragraph;
and
further provided that any notice given by facsimile received after 5:00 p.m.
(recipient’s time) or on a non-business day shall be deemed received on the next
business day; (iii) five (5) business days after deposit in the United States
mail, certified, return receipt requested, postage prepaid, and addressed to
the
party as set forth below; or (iv) the next business day after deposit with
an
international overnight delivery service, postage prepaid, addressed to the
party as set forth below with next business day delivery guaranteed; provided
that the sending party receives confirmation of delivery from the delivery
service provider.
5.3 No
Rights as Shareholder; Limitation of Liability.
This
Warrant shall not entitle the Holder to any of the rights of a shareholder
of
the Company except upon exercise in accordance with the terms hereof. No
provision hereof, in the absence of affirmative action by the Holder to purchase
shares of Common Stock, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder for
the
Warrant Price hereunder or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the
Company.
5.4 Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of California as applied to agreements among California residents made
and
to be performed entirely within the State of California, without giving effect
to the conflict of law principles thereof.
4
5.5 Binding
Effect on Successors. This
Warrant shall be binding upon any corporation succeeding the Company by
merger,
consolidation or acquisition of all or substantially all of the Company’s assets
and/or securities. All of the obligations of the Company relating to the
Shares
issuable upon the exercise of this Warrant shall survive the exercise and
termination of this Warrant. All of the covenants and agreements of the
Company
shall inure to the benefit of the successors and assigns of the
Holder.
5.6 Waiver,
Amendments and Headings.
This Warrant and any provision hereof may be changed, waived, discharged
or
terminated only by an instrument in writing signed by both parties (either
generally or in a particular instance and either retroactively or
prospectively). The headings in this Warrant are for purposes of reference
only
and shall not affect the meaning or construction of any of the provisions
hereof.
5.8 Attorneys'
Fees and Disbursements.
If any
action at law or in equity is necessary to enforce or interpret the terms
of
this Agreement, the prevailing party or parties shall be entitled to receive
from the other party or parties reasonable attorneys’ fees and disbursements in
addition to any other relief to which the prevailing party or parties may
be
entitled.
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be signed by its duly authorized officer
this
20th day of June, 2006.
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COMPANY:
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By___________________________________________
Print
Name: Xxxx Xxxxxx
Title:
Chief Executive Officer
|
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SCHEDULE
A
FORM
OF NOTICE OF EXERCISE
[To
be signed only upon exercise of the Warrant]
TO
BE EXECUTED BY THE REGISTERED HOLDER
TO
EXERCISE THE WITHIN WARRANT
The
undersigned hereby elects to purchase _____________ shares of Common Stock
(the
“Shares”)
of
AHPC Holdings, Inc. under the Warrant to Purchase Common Stock dated June __
,
2006, which the undersigned is entitled to purchase pursuant to the terms of
such Warrant. The undersigned has delivered $________________, the aggregate
Warrant Price for _____________ Shares purchased herewith, in full in cash
or by
certified or official bank check or wire transfer.
Please
issue a certificate or certificates representing such shares of Common Stock
in
the name of the undersigned or in such other name as is specified below and
in
the denominations as is set forth below:
__________________________________________________________________________________________
[Type
Name of Holder
as it should appear on the stock certificate]
__________________________________________________________________________________________
[Requested
Denominations - if no denomination is specified, a single certificate will
be
issued]
The
initial address
of such Holder to be entered on the books of Company shall be:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
The
undersigned
hereby represents and warrants that the undersigned is acquiring such shares
for
his own account for investment purposes only, and not for resale or with a
view
to distribution of such shares or any part thereof.
By:__________________________________________________________
Print
Name:____________________________________________________
Title:_________________________________________________________
Dated:________________________________________________________
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