THIS WARRANT AND THE UNDERLYING WARRANT SHARES HAVE NOT BEEN REGISTERED UNDER
THE ACT, AND (i) THE WARRANT AND THE WARRANT SHARES MAY NOT BE EXERCISED,
OFFERED OR SOLD BY OR ON BEHALF OF U.S. PERSONS, (ii) THE WARRANT MAY NOT BE
EXERCISED IN THE UNITED STATES (EXCEPT AS PERMITTED BY REGULATION S) AND (iii)
THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE DELIVERED IN THE
UNITED STATES UNLESS, IN EACH CASE, THERE IS A REGISTRATION STATEMENT IN EFFECT
COVERING THE WARRANT AND WARRANT SHARES OR THERE IS AVAILABLE AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
ORYX TECHNOLOGY CORP.
FOR VALUE RECEIVED, subject to the terms and
conditions herein set forth, Yorkton Securities, Inc. ("Holder") is
entitled to purchase from Oryx Technology Corp., a Delaware corporation (the
"Company"), at a price per share as set forth in Section 1 hereof (the
"Warrant Price"), the number of fully paid and non-assessable shares of
Common Stock, as hereinafter defined, of the Company as set forth in Section 2
hereof (the "Shares").
1. Warrant Price.
The Warrant Price for each share of Common Stock purchasable hereunder
shall be One Dollar Ninety Cents ($1.90) (the "Warrant Price").
2. Number of Shares.
The number of Shares issuable upon exercise of this Warrant shall be
90,730.
3. Expiration of Warrant.
Subject to earlier termination in accordance with Section 9 below, this
Warrant shall expire and shall no longer be exercisable December 24, 2001.
4. No Fractional Shares.
This Warrant may not be exercised as to fractional shares of Common Stock
of the Company.
5. No Shareholder Rights.
This Warrant shall not entitle the Holder to any of the rights of a
stockholder of the Company.
6. Registration Rights.
(a) The Company shall prepare and file with the Securities and Exchange
Commission ("SEC") not later than March 24, 1997 a registration statement on an
appropriate form (the "Registration Statement") for registration under the
Securities Act of 1933, as amended (the "Securities Act") of the Shares issued
or issuable upon exercise of this Warrant (as adjusted in accordance with
Section 11 hereof). The Company shall use its best efforts to cause the
Registration Statement to become effective no later than June 21, 1997 (but if
the Registration Statement has not been declared effective by such time, the
Company will continue to use its best efforts to cause the Registration
Statement to become effective as soon as possible thereafter) and to keep the
Registration Statement effective thereafter until the earlier of (i) the date on
which all Shares have been resold pursuant to the Registration Statement or
otherwise have been resold pursuant to an exemption under the Securities Act in
a transaction in which the Issuer's transfer agent is instructed in an opinion
of counsel reasonable satisfactory to Issuer, to reissue certificates which do
not contain restrictive legends, or (ii) the date on which is ended the
three-year period referenced in Rule 144(k) under the Securities Act (or such
shorter period set forth in any amendment to Rule 144(k) under the Securities
Act) or any successor rule or subsection relating to the resale of "restricted
securities" by "non-affiliates" of an issuer, as such terms are defined in the
Securities Act and the rules and regulations promulgated thereunder.
(b) In connection with the preparation of the Registration Statement,
Holder shall furnish to the Company all information reasonably requested by the
Company (including, for example, Xxxxxx's intended method of disposition of the
Shares) for inclusion in the Registration Statement, to facilitate the Company's
response to the SEC's comments and questions, or to facilitate the registration
and qualification of the Shares under any state securities or Blue Sky laws.
(c) The Company shall prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as ma be necessary to comply with the provisions
of the Securities Act with respect to the disposition of the Shares. The Company
shall furnish Holder with such numbers of copies of prospectuses or prospectus
documents conforming with the requirements of the Securities Act as Holder may
reasonably request in order to facilitate the disposition of the Shares. The
Company shall use its best efforts to register and qualify the Shares under any
state securities or Blue Sky laws of such jurisdictions as Holder reasonably
requests; provided, however, that the Company shall not be required to take any
action to register or qualify the Shares in any jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration or qualification unless the Company has previously
executed such a general consent in such jurisdiction.
(d) Xxxxxx agrees that, upon its receipt of any notice from the Company of
the happening of any event which makes any statement made in the Registration
Statement, the prospectus or any document incorporated therein by reference,
untrue in any material respect or which requires the making of any changes in
the Registration Statement, the prospectus or any document incorporated therein
by reference, in order to make the statements therein not misleading in any
material respect, Holder will forthwith discontinue disposition of the Shares
under the Registration Statement until the Company provides Holder with copies
of the supplemented or amended prospectus or prospectus documents, or until
Xxxxxx is advised in writing by the Company that the use of the prospectus may
be resumed. The Company agrees to provide Holder with such copies of the
supplemented or amended prospectus or prospectus documents, or notice that use
of the prospectus may be resumed, as soon as reasonably practicable.
(e) The Company covenants to use its best efforts to maintain a continuous
trading market for its Common Stock on the Nasdaq SmallCap Market or National
Market Systems or a United States national securities exchange throughout the
period that the registration rights afforded by the Section 6 remain in effect.
(f) Xxxxxx agrees that, with respect to the offering for resale of the
Shares, Holder will comply with Rules 10b-6 and 10b-7 promulgated under the
Securities Exchange Act of 1934, as amended and such other or additional
anti-manipulation rules then in effect (the "Anti-Manipulation Rules") until
such offering has been completed. The Company also agrees to comply with the
Anti-Manipulation Rules with respect to the offering for resale of the Shares
until such offering has been completed.
(g) In the event of a material breach of the terms of this Section 6 by the
Company, Xxxxxx will be entitled to enforce its rights under this Section 6
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision hereof, and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach by the Company of the
provisions hereof, and that Holder may in its sole discretion apply to a court
of competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violation of the provisions hereof. In addition,
upon the occurrence of a material breach by the Company or by Holder of this
Section 6, the breaching party shall pay all costs and expenses (including the
prevailing party's attorneys' fees and expenses) reasonably incurred in
connection with the preservation and enforcement of such party's rights
hereunder.
(h) The Company shall pay all costs and expenses of any registration
effected pursuant to this Section 6, excluding fees and expenses of counsel for
Holder and underwriting fees, discounts, commissions or expenses of Holder with
respect to the Shares.
(i) Indemnification. To the extent permitted by law, the Company agrees to
indemnify and hold harmless the Holder and its affiliates and agents, and the
Holder agrees to indemnify and hold harmless the Company and its affiliates and
agents:
(1) against any losses, claims,damages, and liabilities and any legal or
other costs and expenses reasonably incurred by such indemnified parties in
connection with investigating or defending any such loss, claims, damage,
liability, or action to which such parties may become subject under the
Securities Act or other federal or state law, insofar as such losses, claims,
damages, liabilities, costs, or expenses (or actions in respect thereof) did not
arise out of and were not based upon written information furnished by such
parties expressly for use in the Registration Statement; and
(2) for amounts paid in settlement of any such loss, claim, damages,
liability, or action if such settlement is effected by the indemnifying p arty
without the prior written consent of the other party to this Warrant, which
shall not be unreasonably withheld.
(j) Subsequent Holders. Any person who acquires any portion of this Warrant
or any of the Shares from the Holder in a transaction that is permitted under
Section 10 of this Warrant and that does not result in such person receiving
securities which are free of restrictions of transfer in the United States and
to U.S. Persons, as such terms are defined in Regulation S under the Securities
Act, shall be entitled to the benefit of all of the rights and privileges set
forth in this Section 6, provided that such person agrees in a writing to the
Company to undertake all of the obligations of the Holder under this Section 6.
7. Reservation of Stock
The Company covenants that during the period this Warrant is exercisable it
will reserve from its authorized and unissued shares of Common Stock a
sufficient number of shares to provide for the issuance of the number of shares
of Common Stock which are issuable upon the exercise of this Warrant. The
Company agrees that its issuance of this Warrant shall constitute full authority
to its officers to instruct the Company's transfer agent to issue the necessary
certificates for Shares of Common Stock upon the exercise of this Warrant.
8. Exercise of Warrant.
(a) This Warrant may be exercised by the Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the Company, together
with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares of
Common Stock being purchased upon such exercise. The 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 Holder shall be treated
for all purposes as the holder of record of such Shares as of the close of
business on such date. As promptly as practicable on or after such date, the
Company shall instruct its transfer agent to issue and deliver to the Holder a
certificate or certificates for the number of full Shares of Common Stock
issuable upon such exercise.
(b) Issuance of certificates for the Shares upon the exercise of this
Warrant shall be made without charge to the registered holder hereof for any
issue or transfer tax or other incidental expense with respect to the issuanc of
such certificates, all of which taxes and expenses shall be paid by the Company,
and such certificates shall be issued in the name of the registered holder of
this Warrant or in such name or names as may be directed by the registered
holder of this Warrant; provided, however, that in the event certificates for
the Shares are to be issued in a name other than the name of the registered
holder of this Warrant, this Warrant, when surrendered for exercise, shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
hereof, and provided further, that any such transfer shall comply with Section
10 hereof. It shall be a condition to the exercise of this Warrant that the
Holder or any transferee hereof certify to the Company, at the time of exercise,
either that he or it is not a U.S. Person (as defined in Regulation S under the
Securities Act) and this Warrant is not being exercised on behalf of a U.S.
Person, or to provide an opinion of counsel that the Warrant and the Shares to
be delivered upon exercise of this Warrant have been registered under the
Securities Act or that an exemption from the registration requirements of the
Securities Act is available. It shall be a further condition to the exericse of
this Wararant that the Warrant may not be exercised in the United States and the
Shares issuable upon exercise of this Warrant may not be delivered to the United
States absent registration under the Securities Act or an available exemption
from registration, unless otherwise permitted by Regulation S.
9. Automatic Termination.
In the event of (i) a proposed merger of the Company with another entity in
which the Company will not be a surviving entity, or (ii) the proposed sale of
all the capital stock, or substantially all the assets, of the Company, then the
Company shall give the Holder of this Warrant at least thirty (30) days notice
of the proposed effective date and terms of such offering or agreements, and if
the Warrant has not been exercised within ten (10) days before the effective
date of such offering or agreements, it shall be automatically terminated unless
during such notice period a registration statement covering the resale of the
underlying Shares is not in effect or the Holder is prohibited by the terms of
Section 6(d) from reselling the Shares.
10. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be assigned or
transferred, except as provided herein and in accordance with and subject to the
provisions of (i) applicable state securities laws, and (ii) the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (such
Act and such rules and regulations being hereinafter collectively referred to as
the "Act"). Any purported transfer or assignment made other than in accordance
with this Section 10 shall be null and void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred or assigned
only with the prior written consent of the Company, which shall be granted only
upon receipt by the Company of an opinion of counsel satisfactory to the Company
that (i) the transferee is a person to whom this Warrant may be legally
transferred without registration under the Act, and (ii) such transfer will not
violate any applicable law or governmental rule or regulation, including,
without limitation, any applicable federal or state securities law. Prior to the
transfer or assignment, the assignor or transferor shall reimburse the Company
for its expenses, including transfer taxes and attorneys' fees, incurred in
connection with the transfer or assignment, and the assignee or transferee shall
agree in writing to undertake all of the obligations of Holder under this
Warrant.
(c) Any assignment permitted hereunder shall be made by surrender of this
Warrant to the Company at its principal office with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax. In such event
the Company shall, without charge, execute and deliver a new Warrant in the name
of the assignee named in such instrument of assignment and this Warrant shall be
promptly canceled.
11. Adjustments to Shares.
(a) If the Company at any time shall by split, reverse split, combination,
reclassification, exchange or subdivision of securities or otherwise, change any
of the securities as to which purchase rights under this Warrant exist into the
same or a different number of securities of any other class or classes, this
Warrant shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification, exchange, subdivision
or other change.
(b) If the Company at any time shall combine or subdivide its Common Stock,
the Warrant Price shall be proportionately decreased in the case of a
subdivision, or proportionately increased in the case of a combination.
(c) If the Company at any time shall pay a dividend payable in, or make any
other distribution of Common Stock (except any distribution specifically
provided for in the foregoing subsection (a)), then the Warrant Price shall be
adjusted, from and after the date of determination of stockholders entitled to
receive such dividend or distribution, to that price determined by multiplying
the Warrant Price in effect immediately prior to such date of determination by a
fraction (i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution. The Holder
shall thereafter be entitled to purchase, at the Warrant Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the nearest
whole share) obtained by multiplying the Warrant Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable upon
the exercise hereof immediately prior to such adjustment and dividing the
product thereof by the Warrant Price resulting from such adjustment.
12. Loss, Theft, Destruction or Mutilation of Warrant.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new warrant identical in tenor and date in lieu
of this Warrant.
13. General.
This Warrant shall be governed by and interpreted in accordance with the
laws of the State of California. The headings in this Warrant are for purposes
of convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and the Holder. All notices and other communications from
the Company to the Holder shall be mailed by first-class registered or certified
mail, postage pre-paid, to the address furnished to the Company in writing by
the last Holder who shall have furnished an address to the Company in writing.
14. Amendment and Waiver.
Any provisions of this Warrant (including, without limitation, termination
of exercisability) may be amended or waived; however, any and all such
amendments or waivers shall be binding upon the Holder only if approved in
writing by both the Company and the Holder.
Issued this 24th day of December, 1996.
Oryx Technology Corp.
By: /s/ Xxxxxx Xxxxx
---------------------
Xxxxxx Xxxxx
SUBSCRIPTION FORM
(1) The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably exercises such warrant for, and purchases,
______ shares of Oryx Technology Corp. Common Stock, purchasable upon the
exercise of such Warrant, and herewith makes payment therefor, all at the price
and on the terms and conditions specified in such Warrant.
(2) In exercising this Warrant the undersigned hereby confirms and
acknowledges that the Shares are being acquired solely for the account of the
undersigned and not as a nominee for any other party, for investment, and that
undersigned will not offer, sell or otherwise dispose of any such Shares except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended (the "Securities Act"), including, but not limited to,
Regulation S promulgated thereunder, or any state securities laws.
(3) The undersigned hereby certifies that either (i) the undersigned is not
a U.S. Person (as such is defined in Regulation S under the Securities Act), or
(ii) the undersigned has delivered to the Company an opinion of counsel to the
effect that this Warrant and the Warrant Shares to be delivered upon exercise
thereof have been registered under the Securities Act or an exemption from such
registration is available.
(4) The undersigned further certifies that this Warrant is not being
exercised in the United State and understands and agrees that the Warrant Shares
may not be delivered to the United States, except as permitted by Regulation S,
absent registration under the Securities Act or an available exemption from such
registration.
(5) Please issue a certificate representing said Shares in the name of the
undersigned.
(6) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned.
Dated: ____________________________
----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Name)
-----------------------------------
(Street Address)
-----------------------------------
(City, State, Zip Code)
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
==================================
----------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Oryx Technology Corp. Common Stock purchasable under the
within Warrant, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer said Warrant on the books of
the Company, with full power of substitution in the premises.
Dated: ___________
----------------------------
(Signature of Registered Owner)
