AFTERSOFT GROUP, INC. Second Floor, 9 Lower Bridge Street Chester, UK CH1 1RS
Exhibit 10.1
AFTERSOFT
GROUP, INC.
Xxxxxx
Xxxxx, 0 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx,
XX XX0 0XX
December
31, 2009
Commonwealth
Associates, LP
000 Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
XX 00000
Re:
Consulting
Agreements
Gentlemen:
Reference
is made to that certain Engagement Agreement dated July 23, 2009, between
Aftersoft Group, Inc. (the “Company”) and Commonwealth Associates, LP
(“Commonwealth”), pursuant to which the Company retained Commonwealth on an
exclusive basis to provide certain financial advisory and investment banking
services to the Company and its subsidiaries or affiliates, as described therein
(the “2009 Agreement”), which, except as set forth in the 2009 Agreement,
replaced that certain Consulting Agreement dated June 3, 2008 between the
Company and Commonwealth (the “2008 Agreement,” and, together with the 2009
Agreement, the “Consulting Agreements”). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Agreements, as
applicable.
This
letter agreement (this “Letter Agreement”) is to confirm the understanding
between the Company and Commonwealth. In consideration of the
issuance by the Company to Commonwealth of warrants to purchase an aggregate of
seven hundred thousand (700,000) shares of the Company’s common stock, $0.0001
par value per share, at an exercise price of $0.08 per share, for a period of
five (5) year(s), substantially in the form of Exhibit A attached
hereto (the “Warrants”), and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, the
parties hereto hereby agree as follows:
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1.
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Commonwealth
hereby surrenders its right to receive from the Company or any party any
fees, compensation or remuneration, including, but not limited to, unpaid
past and/or future monthly fees, M&A fees, success fees, and
reimbursement of expenses, whether in cash, debt, equity or any other
form, to which it may be entitled under the terms of the Consulting
Agreements, including, but not limited to, in connection with any services
that Commonwealth has provided or may provide under the terms of the
Consulting Agreements, and any Transaction which has been or may be
consummated by the Company in the future. Commonwealth
acknowledges and agrees that the Warrants constitute payment in full of
any such fees, compensation or remuneration to which it is or may be
entitled under the Consulting
Agreements.
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2.
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The
Consulting Agreements are hereby terminated, and the parties agree that no
provisions of the Consulting Agreements shall survive this Letter
Agreement.
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3.
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The
Company represents and warrants to Commonwealth that this Letter Agreement
has been duly authorized, executed and delivered by the Company, and
constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its
terms.
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4.
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Commonwealth
represents and warrants the Company that this Letter Agreement has been
duly authorized, executed and delivered by Commonwealth, and constitutes a
legal, valid and binding obligation of Commonwealth enforceable against
Commonwealth in accordance with its
terms.
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5.
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THIS
LETTER AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AND REPRESENTS THE
FINAL AGREEMENT AMONG THE PARTIES REGARDING THE MATTERS SET FORTH HEREIN
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL
AGREEMENTS OF THE PARTIES. ALL PRIOR OR CONTEMPORANEOUS ORAL
AGREEMENTS, UNDERSTANDINGS, DISCUSSIONS, REPRESENTATIONS AND STATEMENTS
ARE SUPERSEDED BY THIS LETTER
AGREEMENT.
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6.
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This
Letter Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to conflict of laws
rules of such state. Any action, proceeding or claim against any of the
parties hereto arising out of, or relating in any way to, this Letter
Agreement shall be brought and enforced in the courts of the State of New
York or the federal court for the Southern District of New York, and the
parties hereto irrevocably submit to such jurisdiction, which jurisdiction
shall be exclusive. The parties hereto hereby waive any objection to such
exclusive jurisdiction and that such courts represent an inconvenient
forum. The parties agree that the prevailing party(ies) in any such action
shall be entitled to recover from the other party(ies) all of its
reasonable attorneys' fees and expenses relating to such action or
proceeding and/or incurred in connection with the preparation
therefor.
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7.
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This
Letter Agreement may be executed in counterparts, and all parties need not
execute the same counterpart; however, no party shall be bound by this
Letter Agreement until a counterpart hereof has been executed by the
Company and Commonwealth. Facsimiles or other electronic
transmission (e.g., pdf) shall be
effective as originals.
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Please
evidence your agreement to each of the provisions of this Letter Agreement by
executing a counterpart hereof where indicated and returning to Aftersoft Group,
Inc.
Very
truly yours,
AFTERSOFT
GROUP, INC.
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By:
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/s/ Xxx Xxxxxxx
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Name:
Xxx Xxxxxxx
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Title: Chief
Executive Officer
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Accepted
as of the date first above written:
COMMONWEALTH
ASSOCIATES, L.P.
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By:
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/s/ Xxxxxx X.
X’Xxxxxxxx
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Name:
Xxxxxx X. X’Xxxxxxxx
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Title:
CEO & President
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3
Exhibit
A
[Forms of
Warrants]
A-1
Form of
Warrant
(with
cashless exercise provision)
THE
WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER, HAVE BEEN AND
SHALL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE STATE SECURITY LAWS. THE WARRANT AND SUCH
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE, AND SHALL NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
THE PROPOSED DISPOSITION IS THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SAID ACT AND SUCH STATE SECURITIES LAWS IN CONNECTION WITH SUCH
DISPOSITION.
AFTERSOFT
GROUP, INC.
COMMON
STOCK PURCHASE WARRANT
Original
Issue Date: December 31, 2009
Void
After: 11:59 P.M., December 31, 2014
This
Warrant is Issued to
[_______________________]
(hereinafter
called the “Holder,” which term
shall include the Holder’s legal representatives, heirs, successors and assigns)
by Aftersoft Group, Inc., a Delaware corporation (hereinafter referred to as the
“Company”). This
Warrant may be transferred by the Holder only in accordance with the provisions
of Section 12.
1. Exercise of
Warrant. For value received and subject to the terms and
conditions hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at any time on or after December 31, 2009 and on or prior to December
31, 2014 (the “Exercise Date”) (with
the subscription form annexed hereto (the “Subscription Form”)
duly executed) at the office of the Company c/o Gersten Savage LLP, 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other office in the United States of which the
Company shall notify the Holder hereof in writing, to purchase from the Company,
at the purchase price hereinafter specified (as adjusted from time to time, the
“Exercise
Price”), [________] shares (the “Warrant Shares”) (as
adjusted from time to time) of the Common Stock, $0.0001 par value per share, of
the Company (the “Common
Stock”). The initial Exercise Price shall be $0.08 per
share.
2. Issuance of Stock
Certificates. As promptly as practicable after surrender of
this Warrant and receipt of payment of the Exercise Price, the Company shall
issue and deliver to the Holder a certificate or certificates for the shares
purchased hereunder, in certificates of such denominations and in such names as
the Holder may specify.
A-2
3. Payment of Exercise
Price. Payment of the Exercise Price shall be made by check
made payable to the order of the Company or wire transfer of immediately
available funds to a bank account designated by the Company.
4. Cashless
Exercise. The Holder may notify the Company in a Subscription
Form of its election to utilize cashless exercise, in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y
[(A-B)/A]
where:
X = the
number of Warrant Shares to be issued to the Holder.
Y = the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the
volume weighted average of the closing prices for the five trading days
immediately prior to (but not including) the Exercise Date.
B = the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued.
5. Limitation on
Exercise. Notwithstanding anything to the contrary contained
herein, the number of Warrant Shares that may be acquired by the Holder upon any
exercise of this Warrant (or otherwise in respect hereof) shall be limited to
the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned by
such Holder and its affiliates and any other persons whose beneficial ownership
of Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Exchange Act, does not exceed 4.999% of the total number of issued
and outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise). For such purposes,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder.
6. Adjustment for Dividends,
Distributions, Subdivisions, Combinations, Mergers, Consolidations or Sale of
Assets.
6.1
Manner of
Adjustment.
(a) Stock Dividends,
Distributions or Subdivisions. In the event the Company shall
issue shares of Common Stock in a stock dividend, stock distribution or
subdivision, the Exercise Price in effect immediately before such stock
dividend, stock distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased and the number of shares of Common Stock purchasable
by exercise of this Warrant shall be proportionately increased.
A-3
(b) Combinations or
Consolidations. In the event the outstanding shares of Common
Stock shall be combined or consolidated, by reclassification or otherwise, into
a lesser number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination or consolidation shall, concurrently with
the effectiveness of such combination or consolidation, be proportionately
increased and the number of shares of Common Stock purchasable by exercise of
this Warrant shall be proportionately decreased.
(c) Adjustment for
Reclassification, Exchange or Substitution. In the event that
the class of securities issuable upon the exercise of this Warrant shall be
changed into the same or a different number of shares of any class or classes of
stock, whether by capital reorganization, reclassification or otherwise (other
than any event addressed by Sections 6.1(a), 6.1(b) or 6.1(d)), then and in
each such event the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification, or other change,
by holders of the number of shares of the class of securities into which such
Warrant might have been exercisable for immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
(d) Adjustment for Merger,
Consolidation or Sale of Assets. In the event that the Company
shall merge or consolidate with or into another entity or sell all or
substantially all of its assets, this Warrant shall thereafter be exercisable
for the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Company
deliverable upon exercise of this Warrant would have been entitled upon such
consolidation, merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Company’s Board of Directors) shall be made in
the application of the provisions set forth in this Section 6 with respect
to the rights and interest thereafter of the Holder of this Warrant, to the end
that the provisions set forth in this Section 6 shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of this
Warrant.
6.2 Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Exercise Price pursuant to this Section 6, the Company
at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Holder a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based.
6.3 Closing of
Books. The Company shall at no time close its transfer books
against the transfer of any shares of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely and
proper issuance of such shares.
7. Covenants of the
Company. During the period within which the rights represented
by this Warrant may be exercised, the Company shall at all times have authorized
and reserved for the purpose of issue upon exercise of the rights evidenced
hereby, a sufficient number of shares of the class of securities issuable upon
exercise of this Warrant to provide for the exercise of such
rights. All securities which may be issued upon the exercise of the
rights represented by this Warrant shall, upon issuance, be duly authorized,
validly issued, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issue thereof. Upon surrender for
exercise, this Warrant shall be canceled and shall not be reissued; provided, however, that upon
the partial exercise hereof a substitute Warrant of like tenor and date
representing the rights to subscribe for and purchase any such unexercised
portion hereof shall be issued.
A-4
8. No Rights as Shareholder
Until Exercise. This Warrant shall not entitle the Holder to
any voting rights or any other rights as a stockholder of the Company but upon
presentation of this Warrant with the Subscription Form duly executed and the
tender of payment of the Exercise Price at the office of the Company pursuant to
the provisions of this Warrant, the Holder shall forthwith be deemed a
stockholder of the Company in respect of the securities for which the Holder has
so subscribed and paid.
9. No Change
Necessary. The form of this Warrant need not be changed
because of any adjustment in the Exercise Price or in the number of shares
issuable upon its exercise. A Warrant issued after any adjustment or
any partial exercise or upon replacement may continue to express the same
Exercise Price and the same number of shares (appropriately reduced in the case
of partial exercise) as are stated on this Warrant as initially issued, and that
Exercise Price and that number of shares shall be considered to have been so
changed as of the close of business on the date of adjustment.
10. Addresses for
Notices. All notices, requests, consents and other
communications hereunder shall be in writing, either delivered in hand or mailed
by registered or certified mail, return receipt requested, or sent by facsimile,
and shall be deemed to have been duly made when delivered:
If to the
Holder, to the Holder’s address as shown on the books of the Company;
or
If to the
Company, to the address set forth on the first page of this
Warrant.
11. Substitution. In
the case this Warrant shall be mutilated, lost, stolen or destroyed, the Company
shall issue a new Warrant of like tenor and denomination and deliver the same
(a) in exchange and substitution for and upon surrender and cancellation of
any mutilated Warrant, or (b) in lieu of any Warrant lost, stolen or
destroyed, upon receipt of evidence satisfactory to the Company of the loss,
theft, or destruction of such Warrant (including, without limitation, a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction), and of indemnity (or, in the case of the initial Holder
or any other institutional holder, an indemnity agreement) satisfactory to the
Company.
12. Transfer
Restrictions. This Warrant shall be freely transferable by the
Holder, and may be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise).
13. Taxes. The
Company makes no representation about tax treatment to the Holder with respect
to receipt or exercise of the Warrant or acquiring, holding or disposing of the
Common Stock, and the Holder represents that the Holder has had the opportunity
to discuss such treatment with the Holder’s tax advisers.
14. Remedies. Each
party stipulates that the remedies at law in the event of any default or
threatened default by the other party in the performance or compliance with any
of the terms of this Warrant are and shall not be adequate, and that such terms
may be specifically enforced by a decree for that specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
15. Governing
Law. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York without
regard to its principles of conflicts of laws.
16. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the Holder and the
Company.
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A-5
IN WITNESS WHEREOF, the parties have
caused this Warrant to be executed this 31st day of
December, 2009.
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AFTERSOFT
GROUP, INC.
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By:
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Name:
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Title:
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A-6
Form of
Warrant
(without
cashless exercise provision)
THE
WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER, HAVE BEEN AND
SHALL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE STATE SECURITY LAWS. THE WARRANT AND SUCH
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE, AND SHALL NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
THE PROPOSED DISPOSITION IS THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SAID ACT AND SUCH STATE SECURITIES LAWS IN CONNECTION WITH SUCH
DISPOSITION.
AFTERSOFT
GROUP, INC.
COMMON
STOCK PURCHASE WARRANT
Original
Issue Date: December 31, 2009
Void
After: 11:59 P.M., December 31, 2014
This
Warrant is Issued to
[_______________________]
(hereinafter
called the “Holder,” which term
shall include the Holder’s legal representatives, heirs, successors and assigns)
by Aftersoft Group, Inc., a Delaware corporation (hereinafter referred to as the
“Company”). This
Warrant may be transferred by the Holder only in accordance with the provisions
of Section 12.
1. Exercise of
Warrant. For value received and subject to the terms and
conditions hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at any time on or after December 31, 2009 and on or prior to December
31, 2014 (the “Exercise Date”) (with
the subscription form annexed hereto (the “Subscription Form”)
duly executed) at the office of the Company c/o Gersten Xxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other office in the United States of which the
Company shall notify the Holder hereof in writing, to purchase from the Company,
at the purchase price hereinafter specified (as adjusted from time to time, the
“Exercise
Price”), [________] shares (the “Warrant Shares”) (as
adjusted from time to time) of the Common Stock, $0.0001 par value per share, of
the Company (the “Common
Stock”). The initial Exercise Price shall be $0.08 per
share.
2. Issuance of Stock
Certificates. As promptly as practicable after surrender of
this Warrant and receipt of payment of the Exercise Price, the Company shall
issue and deliver to the Holder a certificate or certificates for the shares
purchased hereunder, in certificates of such denominations and in such names as
the Holder may specify.
A-7
3. Payment of Exercise
Price. Payment of the Exercise Price shall be made by check
made payable to the order of the Company or wire transfer of immediately
available funds to a bank account designated by the Company.
4. [Reserved.]
5. Limitation on
Exercise. Notwithstanding anything to the contrary contained
herein, the number of Warrant Shares that may be acquired by the Holder upon any
exercise of this Warrant (or otherwise in respect hereof) shall be limited to
the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned by
such Holder and its affiliates and any other persons whose beneficial ownership
of Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Exchange Act, does not exceed 4.999% of the total number of issued
and outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise). For such purposes,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder.
6. Adjustment for Dividends,
Distributions, Subdivisions, Combinations, Mergers, Consolidations or Sale of
Assets.
6.1 Manner of
Adjustment.
(a) Stock Dividends,
Distributions or Subdivisions. In the event the Company shall
issue shares of Common Stock in a stock dividend, stock distribution or
subdivision, the Exercise Price in effect immediately before such stock
dividend, stock distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased and the number of shares of Common Stock purchasable
by exercise of this Warrant shall be proportionately increased.
(b) Combinations or
Consolidations. In the event the outstanding shares of Common
Stock shall be combined or consolidated, by reclassification or otherwise, into
a lesser number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination or consolidation shall, concurrently with
the effectiveness of such combination or consolidation, be proportionately
increased and the number of shares of Common Stock purchasable by exercise of
this Warrant shall be proportionately decreased.
(c) Adjustment for
Reclassification, Exchange or Substitution. In the event that
the class of securities issuable upon the exercise of this Warrant shall be
changed into the same or a different number of shares of any class or classes of
stock, whether by capital reorganization, reclassification or otherwise (other
than any event addressed by Sections 6.1(a), 6.1(b) or 6.1(d)), then and in
each such event the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification, or other change,
by holders of the number of shares of the class of securities into which such
Warrant might have been exercisable for immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
A-8
(d) Adjustment for Merger,
Consolidation or Sale of Assets. In the event that the Company
shall merge or consolidate with or into another entity or sell all or
substantially all of its assets, this Warrant shall thereafter be exercisable
for the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Company
deliverable upon exercise of this Warrant would have been entitled upon such
consolidation, merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Company’s Board of Directors) shall be made in
the application of the provisions set forth in this Section 6 with respect
to the rights and interest thereafter of the Holder of this Warrant, to the end
that the provisions set forth in this Section 6 shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of this
Warrant.
6.2 Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Exercise Price pursuant to this Section 6, the Company
at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Holder a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based.
6.3 Closing of
Books. The Company shall at no time close its transfer books
against the transfer of any shares of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely and
proper issuance of such shares.
7. Covenants of the
Company. During the period within which the rights represented
by this Warrant may be exercised, the Company shall at all times have authorized
and reserved for the purpose of issue upon exercise of the rights evidenced
hereby, a sufficient number of shares of the class of securities issuable upon
exercise of this Warrant to provide for the exercise of such
rights. All securities which may be issued upon the exercise of the
rights represented by this Warrant shall, upon issuance, be duly authorized,
validly issued, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issue thereof. Upon surrender for
exercise, this Warrant shall be canceled and shall not be reissued; provided, however, that upon
the partial exercise hereof a substitute Warrant of like tenor and date
representing the rights to subscribe for and purchase any such unexercised
portion hereof shall be issued.
8. No Rights as Shareholder
Until Exercise. This Warrant shall not entitle the Holder to
any voting rights or any other rights as a stockholder of the Company but upon
presentation of this Warrant with the Subscription Form duly executed and the
tender of payment of the Exercise Price at the office of the Company pursuant to
the provisions of this Warrant, the Holder shall forthwith be deemed a
stockholder of the Company in respect of the securities for which the Holder has
so subscribed and paid.
9. No Change
Necessary. The form of this Warrant need not be changed
because of any adjustment in the Exercise Price or in the number of shares
issuable upon its exercise. A Warrant issued after any adjustment or
any partial exercise or upon replacement may continue to express the same
Exercise Price and the same number of shares (appropriately reduced in the case
of partial exercise) as are stated on this Warrant as initially issued, and that
Exercise Price and that number of shares shall be considered to have been so
changed as of the close of business on the date of adjustment.
10. Addresses for
Notices. All notices, requests, consents and other
communications hereunder shall be in writing, either delivered in hand or mailed
by registered or certified mail, return receipt requested, or sent by facsimile,
and shall be deemed to have been duly made when delivered:
If to the
Holder, to the Holder’s address as shown on the books of the Company;
or
If to the
Company, to the address set forth on the first page of this
Warrant.
A-9
11. Substitution. In
the case this Warrant shall be mutilated, lost, stolen or destroyed, the Company
shall issue a new Warrant of like tenor and denomination and deliver the same
(a) in exchange and substitution for and upon surrender and cancellation of
any mutilated Warrant, or (b) in lieu of any Warrant lost, stolen or
destroyed, upon receipt of evidence satisfactory to the Company of the loss,
theft, or destruction of such Warrant (including, without limitation, a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction), and of indemnity (or, in the case of the initial Holder
or any other institutional holder, an indemnity agreement) satisfactory to the
Company.
12. Transfer
Restrictions. This Warrant shall be freely transferable by the
Holder, and may be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise).
13. Taxes. The
Company makes no representation about tax treatment to the Holder with respect
to receipt or exercise of the Warrant or acquiring, holding or disposing of the
Common Stock, and the Holder represents that the Holder has had the opportunity
to discuss such treatment with the Holder’s tax advisers.
14. Remedies. Each
party stipulates that the remedies at law in the event of any default or
threatened default by the other party in the performance or compliance with any
of the terms of this Warrant are and shall not be adequate, and that such terms
may be specifically enforced by a decree for that specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
15. Governing
Law. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York without
regard to its principles of conflicts of laws.
16. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the Holder and the
Company.
[Remainder
of page intentionally left blank.]
A-10
IN
WITNESS WHEREOF, the parties have caused this Warrant to be executed this
31st
day of December, 2009.
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AFTERSOFT
GROUP, INC.
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By:
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Name:
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|
Title:
|
||
A-11
